Hurst v. Hill

BENNETT, J.

E. B. Hill, a witness for the defendant, was permitted by the court to testify, among other things, that he bought the 15 tons of potatoes with his ovjn money, and as to where he. *316 got the money, and that his father knew nothing about the contract to which his name was signed, and he identified three checks, given by him apparently in the purchase of the potatoes, and which were signed by his own name individually. The admission of this evidence, as to where and how he purchased the potatoes, is one of the errors alleged by the plaintiff.

1. We think the evidence under the circumstances was admissible. Plaintiff had offered evidence tending to show that E. B. Hill was in charge of his father’s store, and that while so in charge he had purchased potatoes upon this order. From this evidence, if unexplained, the jury might infer that the defendant must have known of the transaction and probably assented thereto and was bound thereby. But, if the son bought the potatoes individually and upon his own deal, and paid for them with his own money, and not out of his father’s money, or the store money, it tends to rebut any such inference or presumption, and for that purpose the evidence was competent.

The court, among other instructions, gave the jury the following:

“Plaintiff’s own testimony — that is, the testimony of the plaintiff’s witnesses — is to the effect that the signature was made by E. B. Hill. The contract, being of the character that it is, would require the assent of both parties thereto, expressed in writing and signed by both of the parties.

“You have heard the evidence in the case, and it is for you to determine whether or not the contract in question was signed by both parties at the time it is alleged it was entered into by Mr. J. B. Hill through his agent, Mr. E. B. Hill and Mr. Coffin, and this becomes one of the material questions for *317 you to determine in the course of settlement of the issues herein presented.”

It is claimed by the plaintiff that the court thereby told the jury that plaintiff could not recover unless th.e contract was signed by Coffin at the very time it was signed by E. B. Hill.

It is not necessary to pass upon the question of whether or not the contract had to be signed by Coffin at the very time that E. B. Hill attached his father’s name, or at the time when the carbon copy (which does not appear to have been signed by Coffin at all) was given to young Hill, in order to make a valid contract. Whether or not the court would have been justified in giving such an instruction, it did not in fact so tell the jury. WTiat the court did say to the jury was “that this becomes one of the material questions for you to determine in the course of settlement of the issues herein presented.”

There was a direct conflict in the testimony as to whether or not the contract was signed by Coffin at that time. There is no question but what it was material in the case, whether it was signed at that time or not, even if a signature by Coffin at that time was not absolutely and necessarily essential to a valid contract; therefore the instruction given by the court was not error in any view of the law.

3. The court also instructed the jury as follows:

“In this case any statement or declaration of authority made by the defendant’s son at the time of the original transaction, is not evidence of agency which is binding upon the defendant.”

And the giving of this instruction is- still another ground of error asserted by the plaintiff.

The instruction, however, was the simple declaration of the elementary rule that you • cannot prove *318 the authority of the agent by his own declarations out of court.

This doctrine is so well settled, and so elementary, and has been so often announced by this court, that there is little room for question as to the correctness of the instruction: Bridenstine v. Gerlinger Motor Car Co., 86 Or. 411, 423 ( 168 Pac. 73, 922 ), and authorities cited.

The most serious question in the case, as we view it, is in relation to the giving by the court of the following series of instructions:

“If you should find from the evidence that during such period of time following the execution of this contract as you find reasonable for performance of it, the purchaser was not ready, able and willing to receive the potatoes and pay the contract price, the plaintiff could not recover in this action, irrespective of any default upon the part of the defendant. And by referring to the purchaser in this connection, gentlemen of the jury, I desire to be understood as referring to the holder of the contract,' if there was an assignment of the contract by Mr. Coffin to Mr. Hurst. Reference to purchaser includes reference to Hurst. As assignee he would then be deemed the purchaser within the assignment provision. F. H. Coffin, mentioned in the complaint should be deemed the purchaser at all times until the alleged assignment to the plaintiff.

“If a reasonable time for performance had expired prior to the time of this alleged assignment, and if during that time the said F. H. Coffin was not financially able to pay for the potatoes had delivery been tendered, or was unwilling or not ready to accept the potatoes during that period of time, he was in default, and neither he nor the plaintiff could maintain this action for the breach thereof.^

“Unless, therefore, you find that the said F. H. Coffin was, during the period of performance and up to the time of the alleged assignment, ready, able *319 and willing to accept delivery of said potatoes and pay for the same, you should find for the defendant.”

4. To these instructions there was a blanket exception. They are ambiguous and by no means definite, and it is claimed by the plaintiff that they informed the jury, in effect, that Coffin must have been “ready, able and willing” all the time from the making of the contract up to the assignment, in order to justify a recovery. There are. some portions, especially the last clause of the last paragraph, which seem to justify this construction. In that regard, that clause of the instruction was inaccurate; for under such a contract, where no time for delivery was fixed, if the buyer made a demand for the delivery within a reasonable time, and was ready, able and willing to perform at that time, there being no delivery offered by the seller at any other time, he would b.e in a position, we think, to.enforce the contract.

There is a question, however, as to whether a party can put himself in a position to question a series of instructions, or a long instruction like this, a part of which is incorrect and other portions ambiguous, by a blanket exception to the whole charge or series of charges: Murray v. Murray, 6 Or. 17, 23 ; Kearney v. Snodgrass, 12 Or. 311, 317 ( 7 Pac. 309 ); Conklin v. La Dow, 33 Or. 354 ( 54 Pac. 218 ).

Part of this instruction was unquestionably favorable to the defendant, notably that portion reading as follows:

“I desire to be understood as referring to the holder of the contract, if there was an assignment of the contract by Mr. Coffin to Mr. Hurst. Reference to purchaser includes reference to Hurst. As assignee he would then be deemed the purchaser within the assignment provision. F. H. Coffin men *320 tioned in the complaint should be deemed the purchaser at all times until the alleged assignment to the plaintiff.”

5. It would seem, as a matter of fairness to the court, where a party is excepting to a long series of paragraphs like this, part of which were favorable to him, and other portions vague and ambiguous, that the party so excepting should point out to the court the fault complained of, or at least should point his exceptions to the particular portion of the charge claimed to be definitely erroneous, so that the court may correct it if he sees fit.

6. However, assuming that the exception was sufficient to- present the question, we are of the opinion that however erroneous the instruction may have been, it could not have injured the plaintiff. It was subjunctive in its character, and based upon the hypothetical condition, that a reasonable time for the performance of the contract hacl expired, at the time the assignment of the contract was made to Hurst, and the question of whether or not such a reasonable time had expired was submitted to the jury.

7. This being a contract in which no time for delivery was fixed by the terms of the instrument itself, it is conceded by the briefs of both, the appellant and the respondent that there could be no default which either the buyer or the seller could take advantage of, until one party or the other had made a demand for delivery or acceptance. And this is unquestionably the law.

“If no time is fixed for delivery the buyer must make a demand”: 35 Cyc. 165.

“Neither party could put the other in default, without performance or an offer to pei’form upon his part”: Longfellow v. Huffman, 49 Or. 486 ( 90 Pac. 907 ).

*321 “If both parties are present and neither of them tenders performance, then both are in default and neither of them can sue the other for the breach”: Catlin v. Jones, 52 Or. 337 ( 97 Pac. 546 ).

8. And we think it equally clear, that if either party lets a reasonable time expire, without a demand, then the contract lapses, and neither party can enforce a performance: Hume v. Mullins, 18 Ky. Law Rep. 108 ( 35 S. W. 551 ).

There was no evidence whatever of any demand by Coffin prior to the assignment to Hurst, and indeed there was no evidence of a demand by anyone until March, 1917.

Under this state of facts, if a reasonable time for the performance of the contract had expired, at the time of the assignment by Coffin to Hurst, the contract had lapsed and the plaintiff would have had no right to recover, and the court might safely have instructed the jury that, if a reasonable time for the performance of the contract, and for a demand for performance, had lapsed at the time of such transfer (there being no evidence of a demand prior to that time), then the plaintiff could not recover.

9. The court, however, did not go so far as that, but assumed that the plaintiff could recover, notwithstanding the fact that he had made no demand, even if a reasonable time for the performance of the contract had expired prior to the transfer by Coffin, if he had been ready and willing to perform during that time. The instruction given therefore, while not accurate as an abstract proposition of law, was more favorable to the plaintiff, under the undisputed facts of the case, than he had a right to ask.

We are of the opinion, therefore, that there was no reversible error at the trial and that the judgment should be affirmed.

*322 We are more satisfied with this conclusion because of the long delay on the part of Coffin and Hurst in demanding the performance of the contract. The contract, as we have seen, was dated October 13, 1916, and there is no contention on the part of the plaintiff that any demand was made until in March, 1917, or about five months after the date of the contract, and after the market price of potatoes had gone up from $1.25 to $3.50 per hundred, or almost 200 per cent.

10. It is a well-known fact that potatoes are a perishable product. They do not last, over one season, and if they are stored for any considerable time, they must be sorted and resorted and deteriorate rapidly both in weight and quality. They are also subject to great and sudden fluctuation in values.

If potatoes had gone down to 50 cents a hundred between October and March, instead of going up to $3.50, it would not seem reasonable that the defendant, without offering to deliver from October until March, should then have made up a car and demanded that the plaintiff take them and pay $1.25 a hundred. Neither does it seem reasonable that the plaintiff should lie by for three or four or five months, without making any demand for performance, and then come in and ask that the defendant should be compelled to deliver, when potatoes had gone up to three times their value at the time of the making of the contract.

In Hume v. Mullins, 18 Ky. Law Rep. 108 ( 35 S. W. 551 ), the Supreme Court of Kentucky held that a contract for the sale of whisky in bond, which was in terms very much like this one, had lapsed as a matter of law, where the buyer made no demand *323 for a year and the price of whisky had advanced in the meantime, and that the demand was not made in a reasonable time. Whisky in bond is not a perishable product, but will continue in good condition for many years.

11. If, in the matter of a product like that, which is not perishable, a year is, as a matter of law, an unreasonable time for the buyer to delay making a demand, it would seem that five months, where the property was a perishable commodity like potatoes, and subject to so much fluctuation in value, ought to be considered unreasonable.

The court below submitted the question to the jury as a question of fact, and we think on the whole the rulings of the court were quite as favorable to the plaintiff as he could ask.

Affirmed. Rehearing Denied.

McBride, C. J., and Bean and Johns, JJ., concur.