Shaw Wholesale Co. v. Hackbarth

BEAN, J. 1. The first contention of defendant is that the complaint does not state facts sufficient to constitute a cause of action; that there is no allegation in the complaint of any performance by plaintiff, and no consideration for the agreement alleged. Defendant cites Davis Lumber Co. v. Coats Lumber Co., 85 Or. 542 (167 Pac. 507), and other like cases in support of the proposition that “before the plaintiff can put the defendant in default and claim damages for the breach of a contract, he must allege full performance or readiness and ability to perform on his part.” This general rule is not questioned. 2. Under our statute, in an action at law tried by the court without the intervention of a jury, the findings of the court have the force and effect of a verdict of a jury. Therefore the question in regard to the complaint is, whether or not it is sufficient after verdict. The rule in this state is, that where a defendant answers after his demurrer to the complaint has been overruled, the complaint is to be construed most strictly in favor of the pleader. It will be sustained where it contains a defective statement of a cause of action, but not where it fails [90] to state a cause of action: Olds v. Cary, 13 Or. 362 (10 Pac. 789); Oregon & C. R. R. Co. v. Jackson Co., 38 Or. 589, 597 (64 Pac. 307, 65 Pac. 369); West v. Eley, 39 Or. 461 (65 Pac. 798); Shultz v. Shively, 72 Or. 450, 453 (143 Pac. 1115). Therefore a different question arises in the present case, than where the sufficiency of a complaint is determined upon a demurrer. As to the first criticism of the complaint, it will be noticed that defendant would not recognize the contract, and absolutely refused to ship the lumber before the time for performance of the agreement arrived. The rule in England is well settled that “the positive and absolute refusal by one party to carry out the contract is in itself an immediate complete breach of it on his part, and gives immediate right of action.” 1 Beach on Mod. Law of Contracts, §409. The only extent to which the doctrine is carried in the State of New York is, that a renunciation of a .contract before the time for performance arrives will dispense with the performance of conditions precedent or concurrent, or the offer to perform. Massachusetts courts adopt the doctrine that a renunciation may give cause for treating the contract as rescinded, and excuse the other party from making ready for performance on his part, or' relieve him from the necessity of offering to perform in order to enforce his rights. Illinois follows the Massachusetts rule, but holds the promisee need not wait until the day of performance before making new arrangements. It seems the federal courts and those of Iowa, West Virginia and Michigan, go to the full extent of the English cases, and allow an action to be brought at [91] once upon renunciation: 1 Beach on Mod. Law of Contracts, §§409-412. 3. It is well settled in this state that in the case of an executory contract, for the sale of property, where the seller, before the date for performance, repudiates the contract and refuses to deliver the goods, or to be bound by the contract, and had not signified a change of mind in regard thereto, it is not incumbent upon the buyer in an action for a breach of the - contract to tender a delivery of the goods on the date specified in the contract. The law does not require the doing of a vain or useless act. Therefore, it was not necessary for plaintiff to plead performance of the contract or readiness to perform, after defendant by his letters of May 16 and June 4, 3 917, had repudiated the contract and refused to ship the lumber as agreed: Guillaume v. K. S. D. Land Co., 48 Or. 400 (86 Pac. 883, 88 Pac. 586); Catlin v. Jones, 48 Or. 158 (85 Pac. 515); West v. Washington Ry. Co., 49 Or. 436 (90 Pac. 666); Merrill v. Heater, 52 Or. 138 (94 Pac. 972, 96 Pac. 865). "While the complaint abounds in glittering generalities, a careful study of the averments as to the contract made by the parties discloses that defendant agreed with plaintiff to sell plaintiff 250,000 feet of lumber of the kind described. The parties also agreed upon the price to be paid therefor by plaintiff. It was stipulated by them that delivery of the lumber should be made by September 15, 1917. It may be that the cause of action is defectively stated. We think that a cause of action is set forth in the complaint, and that the pleading is good after verdict. The contract as alleged was mutual: See Ward v. McKinley, 97 Or. 45 (191 Pac. 322). [92] The motion for a nonsuit challenges the sufficiency of the contract of sale, as shown by the letters introduced in evidence. The prevailing rule is, as to sales or contracts to sell by letter, that if a definite proposition is made and accepted by letter, the acceptance being within a reasonable time and before knowledge of any retraction, the contract is closed by mailing the acceptance duly addressed: Benjamin on Sales, American Note, p. 72. The defendant, by his letter of April 31, 1917, offered to sell the lumber to plaintiff as specified definitely in his former letter of March 21, 1917. Plaintiff accepted the offer, and forwarded an order for the 250,000 feet of lumber on April 4, 1917. It appears from the entire correspondence that there was a bona fide intent on both sides to come to a definite agreement for the sale of the lumber. The minds of the parties met, as the evidence tended to show. The contract was binding upon, and could have, been enforced by, either party. The subsequent letter of defendant, attempting to open new negotiations, not acceded to by plaintiff cannot affect the contract, and the offer of such letter in evidence was properly refused by the trial court: Williams v. Burdick, 63 Or. 41 (125 Pac. 844, 126 Pac. 603); 13 C. J., p. 298, § 114. It is claimed by defendant that the agreement as shown by the letters in evidence was modified by a subsequent oral arrangement between the contracting parties. There was a direct conflict in the testimony upon this point. The trial court found plaintiff’s version of the matter was correct. This question is set at rest by the substitute for a verdict. We have no duty to deal with the weight of the evidence. [93] Some claim is made by defendant that the agreement was not definite as to the quantity of each grade, or number, of lumber. The defendant was manufacturing lumber, and under the contract as finally agreed npon any of the grades of lumber mentioned as it came from the log would fill the requirement. The testimony on the part of plaintiff tended to show that the ‘price of each grade advanced five dollars per thousand during the period between the time of the agreement and the date for delivery. The trial court allowed only the amount the' price had increased. Hence the claim does not embrace a material matter. The testimony was sufficient to pass the case to a jury, and the motion for a nonsuit was correctly overruled. We find no error in the record. The judgment of the trial court is affirmed. Affirmed. Benson, J., not sitting.