Taylor v. Tripp

JOHNS, J. 1. As we analyze the contract, it was not divisible, and there were no independent cove [617] nants. It was complete within itself, executed at one time hy certain parties, concerning the one subject matter. The defendants were to furnish the sawlogs and advance the money. The plaintiffs were to manufacture the logs into ties and side lumber. There was a stipulated price for the cost of both the logs and the lumber. In the very nature of things, the mill could not be operated without sawlogs or money. The agreement of the defendants to advance the money for operating expenses was a primary consideration which entered into and was a part of the contract. 2. The Circuit Court found that the defendants violated the contract in their refusal and neglect to deliver logs. It was agreed that the mill had a capacity of 20,000 feet per day. Up to March 31, 1918, not more than 750,000 feet of logs were delivered. It is a matter of common knowledge that in that section of the state the high-water period is during the winter months. If the logs were to be delivered by way of Poodle Creek, it would have to be during that season. But the fact remains that the specified amount of timber was not delivered; that it was not ready for delivery; that up to March 31, 1918, under its normal capacity, the mill could have cut about 1.500.000 feet of lumber, but that no more than 750.000 feet of logs were delivered. We have carefully read the voluminous record in this case, and agree with the trial court that the contract was not modified, that it was breached by the defendants, and that their failure to perform was not due to any of the exceptions specified in the contract. 3. The right of the defendants to enforce the lien is not independent. It arises from the provisions of the written contract. On principle, the case of [618] Burkhart v. Hart, 36 Or. 586, 589 (60 Pac. 205, 206), is in point here. It was there held that: “The modern doctrine is that a contract should be .construed according to the meaning and intention of the parties.” Quoting with approval from Clark on Contracts, 656, the opinion goes on to say: “It is sufficient to say that, ‘in the absence of very clear indications to the contrary, promises, each of which forms the whole consideration for the other, will not be held to be .independent of one another, and a failure of one party to perform on his part will excuse the other from liability to perform.’ ” The lien here in question is founded upon the contract, and does not exist as a matter of right. Since they breached the contract, the defendants cannot assert and enforce a lien under its terms and provisions. 4. Counsel for the defendants cite authorities to the effect that a party cannot rescind a contract and then recover damages for its breach. That is the law. But it is not the ground upon which the plaintiffs’ caus.e of action was founded. Where one party to a contract breaches it, the other has the option of treating it as broken, and recovering as damages the profits which he would have realized if it had been fully performed. Legally speaking, that is not a rescission, but constitutes an acceptance of the situation brought about by the party who broke the contract. Here the plaintiffs allege that in good faith they kept and performed their part of the contract, and the evidence is conclusive that they were ready to, and did, saw all of the logs furnished, and as fast as they were delivered. They vigorously protested against the shortage of logs until March 31, 1918, when they were [619] forced finally to close the mill for want of logs. The contract was definite and certain, calling for the delivery of 20,000 feet of lumber per day for the period of one year. The facts show that an average of only 7,000 feet per day was delivered during the time the mill was operated, and no valid excuse is shown for the shortage. The rule is thus laid' down in Longfellow v. Huffman, 49 Or. 486, 491 (90 Pac. 907, 909): “ ‘It is well settled,’ says the Supreme Court of Illinois, ‘that, where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies: He may treat the contract as rescinded, and recover upon quantum meruit so far as he has performed; or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance sue and recover, under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing. In the latter ease the contract would be continued in force for that purpose. Where, however, the injured party elects to keep the contract in force for the purpose of recovering future profits, treating the contract as repudiated by the other party, in order to such recovery, the plaintiff must allege and prove performance upon his part, or a legal excuse for nonperformance’: Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 80 (38 N. E. 777, 30 L. R. A. 33).” In the instant case the plaintiffs have elected to treat the breach by the defendants as an end to the contract, and have brought their action for profits which should have accrued at the time of the breach. The testimony is conclusive, and supports the finding [620] of the Circuit Court that the plaintiffs were damaged in the sum of $500. The defendants’ legal contentions are sound, hut they are not sustained by the facts. The judgment is affirmed. McBride, C. J., and Bean and Bennett, JJ., concur.