Davis Lumber Co. v. Coats Lumber Co.

Me. Justice Burnett

delivered the opinion of the court.

1. There is no bill of exceptions in the record. The contention of the plaintiff is that the judgment is void because there were no findings of fact or conclusions of law. It is true that Section 158, L. O. L., requires that:

“Upon the trial of an issue of fact by the court, its decision shall be given in writing, and filed with the clerk during the term or within twenty days thereafter. The decision shall state the facts found, and the conclusions of law separately, without argument or reason therefor. * * ”

The section is applicable to a trial of an issue of fact and not where a mere issue of law is involved. It is said in Section 79, L. 0. L.:

*546 “ * * and at any time when the pleadings in the suit or action are complete, or either party fails or declines to plead further, the court may, upon motion, grant to any party moving therefor, such judgment or decree as it may appear to the court the moving party is entitled to upon the pleadings.”

The order of the court here in question recites that there is no pleading of plaintiff’s ability or willingness to perform the contract sued upon. In the absence of a bill of exceptions and there being no findings of fact or conclusions of law within the meaning of Section 158, L. O. L., the question presented is whether the complaint states facts sufficient to constitute a cause of action. The contract involved is one prescribing what is to be done by the plaintiff and what by the defendant. These are at least concurrent covenants. Indeed, referring to the phrase already quoted, “Terms of Order, 90% advance,” if it were necessary, it might well be decided that this was a condition precedent, so that the plaintiff would be compelled to pay 90% of the purchase price in advance of delivery of the lumber. Waiving this and considering the matter as one of mutual dependent covenants, however, it frequently has been held that in declaring upon such a contract the plaintiff must allege full performance or readiness and ability to perform on Ms part before he can put the defendant in default and claim damages as for a breach of the stipulation: Catlin v. Jones, 48 Or. 158 ( 85 Pac. 515 ); Longfellow v. Huffman, 49 Or. 486 ( 90 Pac. 907 ) ; Mann v. Flynn, 62 Or. 465 ( 125 Pac. 274 ). The complaint is utterly silent on this subject and does not anywhere state or attempt to state either performance by the plaintiff or its readiness or ability to comply with the stipulation on its part. It is not an instance of a lame statement of a wholly good cause *547 of action. The complaint is utterly mute in this essential particular.

The answer of the defendant does not indicate any repudiation of its agreement. It pleads an excuse for not performing and shows that it is yet within the pale of its covenant and has not broken it. The right to delay under the circumstances is as much a part of the contract as any other feature of it. This takes the case out of the doctrine announced in Catlin v. Jones, 48 Or. 158 ( 85 Pac. 515 ); to the effect that although the complaint is defective, yet if the matter in respect to which it is wanting is put in issue by the answer and reply the imperfection is cured. In that ease the complaint was faulty in that it did not allege the readiness and ability of the plaintiff to perform, but the answer charged a breach of the contract by the plaintiff in this very respect, which was in turn challenged by the reply. The matter was therefore properly before the court for determination and the decision was put upon a proper basis and rightly rendered. Here, however, the defect in the complaint is not aided by the answer.

2. Neither is the case within the teaching of Livesley v. Krebs Hop Co., 57 Or. 352, 367 ( 107 Pac. 460 , 112 Pac. 1 ), to the effect that where the defendant has repudiated the contract it is not necessary for the plaintiff to tender performance as that would be a vain thing. As already indicated, the defendant here is not in the position of renouncing the contract or refusing to perform. The answer only avers a stipulated excuse for not delivering the lumber and is in accordance with the covenant rather than in breach thereof.

3, 4. The objection that the complaint does not state facts sufficient to constitute a cause of action is never *548 waived and may be raised even for tbe first time in the Supreme Court: Mack v. City of Salem, 6 Or. 275 ; Wyatt v. Henderson, 31 Or. 48 ( 48 Pac. 790 ); Robinson v. Holmes, 57 Or. 5 ( 109 Pac. 754 ); Whitney Co. v. Smith, 63 Or. 187 ( 126 Pac. 1000 ). The ruling of the court is justified by the provisions of Section 79, L. O. L., as a question of judgment on the pleadings involving merely an issue of law. For this reason it was not necessary to make findings of fact or conclusions of law, because no question of fact was involved. It is purely a question of pleading, hence the judgment must be affirmed. Affirmed, Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice McCamant concur.