Mann v. Flynn

Mr. Justice Moore

delivered the opinion of the court.

1. The question to be considered is whether or not the evidence received was sufficient to authorize a judgment in plaintiff’s favor when no evidence was offered by the defendant. E. C. Thomas, the plaintiff’s secretary, as its witness, testified to the effect that prior to March 1, *468 1911,. he tried to complete a contract with F. O. Thompson, the defendant’s agent, so as to authorize the plaintiff to print the magazine, but, objection having been made to the language employed in the writing submitted, for that purpose, no agreement therefor was ever reached; that, though the plaintiff desired to print that publication, the failure to obtain a contract therefor would not have prevented a sale of the property; that the Northwest Architect was not published after March 1, 1911, at which time and thereafter the plaintiff held for the defendant at its office in Portland all the property mentioned ; that on the day last named the defendant did not have an office in Portland nor did he then or ever demand the possession of any of the property, which at that time was unincumbered, and the plaintiff then and thereafter was the owner thereof and willing to deliver it to the defendant; that no bill of sale of the property was made or tendered to the defendant until March 6, 1911; and that on February 28th of that year the plaintiff received from George W. Foreman $3.00 for a year’s renewal of his subscription to the magazine .from December 1, 1910. The sworn statements of this witness were corroborated by the testimony of S. C. Beach, the president and manager of the plaintiff corporation, who stated that several times prior to March 1, 1911, he called at a room on the eighth floor of the Lewis Building, in Portland, which apartment the defendant claimed as his place of business, for the purpose of submitting to him a bill of sale and of turning over to him the property, but that he was unable to find him.

The foregoing is believed to be a fair statement of the material testimony relating to the plaintiff’s ability and willingness to comply with and perform the terms of the written agreement hereinbefore set forth. Though no bill of sale was prepared until March 6, 1911, it is thought *469 a sufficient showing was made to impose upon the defendant the duty of refuting the testimony offered, and of showing that he did not absent himself so as to prevent a delivery of the specified property within the time stipulated or to thwart a tender of a bill of sale evidencing a transfer of the title.

2. It will' be remembered that the contract did not fix the place of delivery of the magazine, subscription lists, contracts. from advertisers, etc. In such case the seller is usually under no obligation to send or deliver the property to the buyer at any other place than where it was kept when a contract for its sale was effected. 24 Am. & Eng. Ency. Law (2 ed.) 1068. A text-writer, discussing this subject says:

“Ordinarily, in sales, the buyer must come for the goods before the seller is bound to deliver.” Benjamin, Sales (6 ed.) 676.

3. The plaintiff’s obligation was fully performed, if its agents placed the property at the disposal of the defendant, whose duty it was to tender payment therefor and to demand possession thereof. From a consideration of the language of the contract, it appears that these conditions were mutual and dependent, in which case neither party could put the other in default without an offer to perform. Catlin v. Jones, 48 Or. 158, 165 ( 85 Pac. 515 ) ; Longfellow v. Huffman, 49 Or. 486, 490 ( 90 Pac. 907 .)

4. The plaintiff on February 28, 1911, received $3 for the renewal of a subscription to the Northwest Architect, which sum, if payable in advance, had been due since December 1, 1911. It will be kept in mind that the contract stipulated that the corporation was entitled to the open book accounts of the magazine on February 28, 1911. It would appear, therefore, that by receiving the money on that day plaintiff had not waived a sale of the property.

*470 Believing that the testimony received was sufficient to have required the defendant to introduce evidence to ■ refute the prima facie showing made by the plaintiff, the judgment is reversed, and the cause remanded for such further proceedings as may be necessary, not inconsistent with this opinion. Reversed.