Propst v. William Hanley Co.

BURNETT, J.

Two questions are presented in the argument in the defendant’s brief: One is the contention that in allowing the plaintiff to offer proof of the quoted allegation of his complaint the court violated the rule against allowing other evidence of the terms of *400 an agreement than the contents of the writing itself. The other assignment; of error is predicated upon an instruction given by the court to the effect that the measure of damages was the difference between the contract price of the hay and the market value thereof on the date of the breach, together with, interest at 6 per cent on that sum until the trial of the action.

1. It is said- in effect in 1 Elliott on Evidence, Section 581, cited by the defendant, that it is competent to modify a written agreement by parol contract made after the writing, and that—

“If the parol contract was in fact made subsequent to the written, contract and evidence thereof is otherwise unobjectionable, it makes no difference how short the interval may have been. ’ ’

It is common learning, embodied in Section 713, L. O. L., that when a contract has been reduced to writing and signed by the parties it is to be considered as containing all the terms of the stipulation, “and therefore there can be between the parties and their representatives or successors in interest no evidence of the terms of the agreement óther than the contents of the writing, ’ ’ except in certain instances not here involved.

The issue between the parties then, is whether there was a subsequent agreement. That is one aspect of the contention. Another is that the language of the complaint amounts in legal effect to stating a waiver by the defendant of that provision of the contract requiring the hay to be measured instead of weighed. Without quoting it in detail, it is enough to say there was evidence properly before the jury upon which it could be found that the quoted allegation of the complaint was true.

*401

2, 3. Waiver may be made the subject of contract, for which a consideration is requisite, the same as in any other contract. In practical effect measurement of the hay amounts to an estimate of its weight. It is common knowledge that several conditions may affect the actual avoirdupois of stacked hay. For instance, if it is piled loosely or in low stacks it will weigh less per cubic foot than if packed densely in high stacks, because the greater weight of the higher stack will compress the lower part, so that a cubic foot of it will weigh more than the same unit of a low, loose pile. The contract did not provide how the hay should be stacked. The plaintiff had the opportunity of building high stacks with the chance of an advantage in tonnage by measurement. ' In actually weighing the hay taken from the field he surrendered a probable advantage which might have accrued to him in stacking, and, considering the matter of the change in the contract or waiver of its terms from the standpoint of a contract, the jury would be authorized to find from’ that circumstance of disadvantage to the plaintiff a consideration supporting the supplementary agreement. The contract, being for the sale of personal property of greater value than fifty dollars, was necessarily within the statute of frauds. The evidence, however, was sufficient to allow the jury to find that there was a fully performed parol agreement for a substitute method of ascertaining the quantity of hay hauled away for immediate use. We are concluded by the verdict on the existence and actual performance of such a supplemental stipulation which in that respect obviates the effect of the statute within the meaning of Sayre v. Mohney, 35 Or. 141 ( 56 Pac. 526 ), and precedents there noted. It is said in 40 Cyc. 263:

*402 “The confusion among the cases as to the necessity of a consideration for waiver arises out of the element of estoppel which frequently appears in the particular case. In the absence of conduct creating an estoppel, a waiver should be supported by an agreement founded upon a valuable consideration, although a consideration, such as is necessary to support a contract, is not always essential. Where the acts of a party are such as to estop him from insisting upon the right claimed to have been relinquished, no consideration is necessary.”

The same volume, at page 252, defines a waiver thus:

‘ ‘ The act of waiving, or not insisting’ on some right, claim, or privilege; a foregoing or giving up of some advantage, which, but for such waiver, the party would have enjoyed; an election by one to dispense with something of value, or to forego an advantage he might have taken or insisted upon; the giving up, relinquishing, or surrendering some known right; an intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment or waiver of such right; the intentional abandonment or relinquishment of a known right; the relinquishment or refusal to accept a right; a voluntary relinquishment of some right; the voluntary relinquishment of some existing right; the voluntary relinquishment of a known right; a voluntary relinquishment of the right that one party has in his relations to another; the voluntary abandonment or relinquishment by a party of some right or advantage; a voluntary surrender and relinquishment of a right; the voluntary relinquishment or renunciation of some right; the voluntary and intentional abandonment, renunciation, or relinquishment of a known legal right; the voluntary relinquishment of some known right, benefit, or advantage, and which, except for such waiver, the party otherwise would have enjoyed; the voluntary yielding up by a party of some existing right; a neglect or omission to insist upon a matter of which a party may take advantage at the time when it ought to be done, so that it *403 may operate as a trap to the other party, to insist upon it afterwards; the passing by of a thing, or a refusal to accept it; the renunciation of some rule which invalidates the contract, but which, having been introduced for the benefit of the contracting party, may be dispensed with at his pleasure; an implied consent by a failure to object.”

There was testimony that the plaintiff hauled about twenty-six tons for his own immediate use, as he was in the livery and feed business at the time, and all with the knowledge of the defendant’s agent in charge of the ranch where the hay was grown, without any objection being made. It appears in evidence, too, that the price of hay nearly doubled over the contract price, and a situation is delineated where the jury might very properly believe that with the knowledge of the plaintiff’s action in that respect the defendant did not object, and that the plaintiff in good faith believed from the conversation immediately after the execution of the writing, had with the agent of the defendant, that he had a right to take the hay for his use. Waiver is said to be akin to estoppel, although not identical, and the jury might readily have believed that the defendant lured the plaintiff into a situation where he would be in the unenviable plight of a covenant breaker, rendering him responsible in damages for a breach of the contract, when none was intended, all of which would give rise to the estoppel element of waiver. These considerations lead to the conclusion that the Circuit Court was not in error in.allowing testimony in support of the quoted allegation of the complaint. By it was taken to the jury the question of waiver by defendant of one of the details of the contract requiring measurement rather than weighing of the hay in ascertaining the quantity, whether the waiver was based on sup *404 plemental contract made after the written one and requiring i a consideration, or took effect as upon an estoppel.

4-6. The cases of Williams v. Pacific Surety Co., 77 Or. 210 ( 146 Pac. 147 , 149 Pac. 524 ), and Sargent v. American Bank & Trust Co., 80 Or. 16 ( 154 Pac. 759 , 156 Pac. 431 ), settled the matter of interest adversely to the plaintiff, so that the court was in error in directing the jury to allow interest on the amount from the time of the breach up to the day of trial. However, having all the data before us, this matter may be adjusted in this court. The testimony shows that the defendant gave notice of its rescission of the contract on August 18,1917. That constituted the breach of the contract, if any there was. The question then is: What sum of money on that date at 6 per cent would produce the amount named in the verdict, or $1,631.55, on April 29,1919, the date of the rendition of the verdict? What is known as the amount in computation of interest is the product of three factors: the time, the rate and the principal. We have the two factors of rate and time, and the product, $1,631.55. By dividing the product of the three factors by the product of two of them, we ascertain in the quotient the third factor, or the original principal. In this case a computation on that basis shows that $1,483.22, counting interest at 6 per cent thereon from August 18, 1917, to April 29, 1919, would produce the amount named in'the verdict.

The judgment will therefore be modified by deducting from the amount of. the recovery the difference, amounting to $148.33; but otherwise it will be affirmed. The modification is sufficient to carry costs in favor of the defendant in this court.

Modified and Affirmed.