Salem King's Products Co. v. Ramp

Contracts — Courts Only Construe Contracts. 1. Courts are empowered to construe contracts, but they cannot make contracts for parties. Contracts — Definite and Unambiguous Written Words Final Evidence of Intention of Parties. 2. In construing contracts the primary object is to ascertain the intention of the contracting parties, and, if the words used by them are plain, clear, definite and unambiguous, they will be taken as the final evidence of the intention of the parties. Contracts — Rules of Construction not Applied Where Language is Unambiguous. 3. Where the intent of the parties to a contract is expressed in clear and unambiguous language, there is no need for the application of any of the rules of construction. 2. Rule of construction that language used by promisor is to be construed as promisor thought it to be understood by promisee, see note in 12 Ann. Cas. 392. Evidence — Contract Held Ambiguous and Hence to Warrant Parol Evidence. 4. A rider to a contract to pay a minimum of four cents per pound for ten years for loganberries, declaring “if S. raises their buying price to other growers in 1918, or thereafter, this contract will automatically conform with that price,” held open to other meanings than that the obligation to pay more than four cents is dependent upon two conditions, (1) that if S. has a buying price and (2) that if S. raise that buying price, and parol evidence was admissible to show that it was intended that S. pay the market price if it exceeded four cents, in view of Section 721, Or. L. Contracts — Construed Most Strongly Against Party Preparing It. 5. A written contract will be construed most strongly against the party preparing it. Contracts — Construction Implying Good Faith Adopted. 6. If a contract is susceptible of two constructions, one of which imputes bad faith and the other implies good faith, the latter will be adopted for the reason that every contract implies good faith and fair dealing between the parties. Evidence — Parol Evidence Admissible to Explain Ambiguous Contract. 7. Where the language of a contract is ambiguous, equivocal, or reasonably susceptible of two or more conflicting constructions, it is competent to resort to parol testimony concerning the circumstances under whieh the agreement was made or to which it relates, including the situation of the subject of the instrument and of the parties to it, in order, not to add to or detract from or otherwise vary the terms of the instrument, but to enable the court to ascertain what the meaning of the parties really is, under Sections 713, 717, Or. L. Sales — Facts Held to Show Agreement to Pay Minimum of Four Cents Per Pound for Loganberries Intended Payment of Market Price. 8. Under a contract to sell loganberries for ten years at a minimum price of four cents per pound, held, that it was the intention of the parties that plaintiff should pay the market price when it was in excess of four cents per pound. Evidence — Construction of Contract by Agents of One Party Held Admissible. 9. Where agents had authority to solicit berry-growers to sign contracts and to explain the meaning of the contracts, representations by such agents as to the meaning of the contracts were admissible in evidence where the contracts were reasonably susceptible of the construction given. Pleading — Defense Held not to Amount to Admission That Contract was Given Same Meaning as Given to It by Plaintiff. 10. In an action for specific performance of a contract to sell loganberries for ten years, defendant’s first separate defense declaring that plaintiff represented to the defendants that the plaintiff would attach a rideT with certain words, but instead a rider differently worded was attached, did not amount to an admission that defendants gave to the rider the same meaning as is given to it by the plaintiff.

From Marion: George G. Bingham and Percy R. Kelly, Judges Sitting in Banc. Department 1. The Salem King’s Products Company, a corporation, brought this suit for the purpose of compelling ten several growers of loganberries specifically to perform their respective contracts to deliver loganberries to the plaintiff. There was a decree for the defendants, and the plaintiff appealed. The King’s Products Company is a corporation, and, since it owns practically “all of the entire stock of the Salem King’s Products Company,” it will for convenience be called the parent company; and for the sake of brevity the Salem King’s Products Company will be referred to either as the Salem Company, or as the plaintiff. In 1917 the Salem Company concluded to establish a plant in Salem for the dehydration of vegetables, fruits and berries. The Salem Company owns or has the right to use a patented process which is said to have decided advantages over any other process used in the dehydration of vegetables, fruits and berries. Work on the plant was begun “the latter part of March or the first of April” in 1917. The “original plans were to build the present unit of the Salem plant, so that the plant could eventually be constructed to four times its original capacity.” In other words, the original plan contemplated the ultimate construction of four units.- One unit was completed in 1917. As originally constructed the capacity of the plant was “about ten tons per day.” Although “a second unit along the lines” ‘as originally planned has not been built, nevertheless the capacity of the plant has been materially increased. Instead of building additional units “identical with the original unit,” the Salem Company pursued other methods for increasing the capacity of its plant; and this was accomplished by adding twenty drying-cars in 1918, thus increasing its drying capacity 50 per cent, and by installing a by-products department in the spring of 1919 with “a capacity of about ten tons per day.” The Salem Company began the erection of this plant with the belief that the Salem Fruit Union would supply it “with all fruits and vegetables.” But upon learning that the Salem Fruit Union “could not secure the necessary tonnage of vegetables” and “would not deliver loganberries,” the plaintiff company concluded to “put agents in the fields to secure contracts from the growers”; and accordingly on or about July 19, 1917, the Salem Company sent out men, known as field agents, including G-uy Coe and Luther J. Chapin, to negotiate contracts with growers. The field agents were supplied with printed blank forms to be used in making contracts with the growers. This blank form of contract was so designed that it could be used for any products, whether fruits or vegetables or berries. When the field agents were first sent out to secure contracts for loganberries, they were authorized to say to any grower that the Salem Company would agree to pay 4 cents per pound for loganberries each year for the whole or any part of a period of ten years beginning with 1918 and ending with 1927, if the grower would in turn obligate himself to deliver his berries during such stipulated period. The field agents worked among the growers for a “couple of days” soliciting contracts, but they failed to secure any contract with any grower. The Salem Company then prepared a rider in the form of a typewritten slip of paper, reading as follows: ‘‘If Salem King’s Products Co. raise their buying price to other growers in 1918, or thereafter, this contract will automatically conform with that price.” The Salem Company claims that this rider was prepared for the sole purpose of preserving uniformity iñ price, so that each year every grower would receive the same price for his berries that any other grower received, and so that in any given year no grower would receive more than any other grower delivering to the Salem Company. The defendants say that this rider was in truth prepared to meet objections made by growers and encountered by the field agents when the latter solicited contracts. The defendants claim that the growers refused to sign contracts because the Salem Company was merely offering to pay an unvarying, fixed price of 4 cents per pound for each year’s crop without any stipulation allowing the growers an increased price in the event the market price should be greater than 4 cents per pound. The Salem Company insists that the offer of 4 cents per pound was of itself a sufficient inducement to the growers, for the reason that it was more than was then being offered or paid by any other buyer and, indeed, was from one half a cent to one cent more than had ever before been paid to any of the growers. The defendants contend that the fixed price of four cents was °no inducement at all for a long term contract. The Salem Company says that there could have been no reason for it to have offered to pay a minimum price of four cents per pound with an obligation to pay a higher price in any given year if the market price in such year exceeded four cents per pound. The defendants answer this statement by saying that the Salem Company was endeavoring to secure enough acreage to insure a sufficient supply of loganberries for its plant, and that its principal object was to tie up about 300 acres of loganberries. It is not necessary to decide whether the rider was prepared to preserve uniformity in price as contended by the plaintiff, or to meet the objections of the growers as contended by the defendants; but the fact remains that the rider was prepared, and the further fact remains that the Salem Company did not secure any contract until the rider was prepared, unless it can be said that the contract with Bruce Cunningham constituted an exception; but as will subsequently appear the Cunningham contract cannot be treated as an exception if his testimony is accepted as a correct version of the circumstances attending the execution of the contract. After the Salem Company authorized the rider to be attached to the printed form it secured contracts with growers, including B. F. Ramp, Bruce Cunningham, Britt Aspinwall, C. H. Dencer, O. L. Dencer, Clyde Harris, August Lentz, L. S. Mur dick, W. Howard Ramp and A. E. Harris. S. V. Ramp took over B. F. Ramp’s berry business on May 16, 1918, and the latter’s contract with the Salem Company was assigned to S. Y. Ramp, who agreed to assume its obligations; and for that reason S. V. Ramp was made a defendant. It may assist the understanding if a copy of one of the contracts is here set down, and it may be of further assistance if the words which were written into the contract with a lead pencil or in ink are italicized so as to distinguish them from the printed words in the contract; and we accordingly copy the B. F. Ramp contract and in doing so italicize the words which were written with a lead pencil or in ink, as follows: “Salem King’s Products Co. Office Salem, Oregon. “This Agreement Made this 30th day of July, 1917, "Witnesseth, That Salem King’s Products Co., a corporation of Portland, Oregon (hereinafter designated as the ‘buyer’), and B. P. Bamp of Brooks, Oregon (hereinafter designated as the ‘seller’), hereby agree as follows: “The buyer agrees to buy and the seller agrees to sell, at the prices and terms set out below, produce of the varieties, specifications and designated quantities mentioned below, grown by the seller at Brooks, Oreg. for the years 1918, 1919, 1920, 1921, 1922, 1923, 1924, 1925, 1926 and 1927, inclusive. “1st: It is understood and agreed that legal title to said crop is in the seller and the same is hereby agreed to be conveyed and transferred to the buyer, upon the terms and for the consideration hereinafter mentioned. “2nd: It is also understood and agreed that the seller will remain in possession of said crop and care for same in a husbandlike manner until delivered by the seller to the buyer. “3rd: It is understood and agreed that all of said crop shall be of good merchantable quality, free from worms and other imperfections, except as specified, and in good condition for evaporating purposes at Salem, Oregon, at the time of delivery to the buyer, its successors or assigns. All produce not up to specification shall, after delivery and examination of same by buyer, be weighed back and charged against the seller, or the price to be paid to seller. Payment for produce under this agreement shall be made each Tuesday at Salem, Oregon, for produce delivered during the preceding week. The buyer reserves the right to delay payment for X days, if unforeseen conditions shall prevent grading of produce before that time. All containers for delivery of produce shall be furnished by the Buyer. All containers furnished by the buyer to seller and not returned by seller will be charged to seller. “4th: It is understood and agreed that the following list contains the quantity, variety, price per ton, and specifications relating to the crops to be sold. “Quantity. Varieties. Price per ton. Specifications. 24 acres. Loganberries. JT. O. B. Plant. Busb ripe. $80.00. Acceptance at Brooks in less than 4 ton lots inspector paid by Growers, otherwise by Company. “5th: It is understood and agreed that if the seller shall be unable to deliver the produce owing to destruction of crop by flood, frost, or other unavoidable casualty, or if the buyer shall be unable to operate on account of strikes, fire or other unavoidable casualty, this contract shall abate, and the parties hereto shall be relieved from their obligations hereunder for the year in which such casualty or other event above described occurs, upon written notice of either party to the other of the inability to perform by reason of such casualty or other event; otherwise to be in full force and effect. “6th: It is further understood that the covenants herein contained shall run with the land on which said produce is raised, and shall bind the parties hereto, their heirs, administrators or assigns. And it is further understood that in consideration of the above, the seller has this day received from said buyer the sum of One Dollar in part payment of the purchase price. “This contract is not valid unless countersigned by the Field Manager. “B. F. Eamp, Seller. ‘ ‘ Two "Witnesses: “W. Howard Eamp. “Approved: “Salem King’s Products Co., “By Stanley Armstrong, “Field Manager.” “Salem King’s Products Co., “Buyer. “By Guy E. Coe, Agent.” For convenience we shall hereinafter refer to the B. F. Ramp contract as the S. Y. Ramp contract. The other nine contracts entered into with the nine several defendants, other than S. Y. Ramp, are identical with the S. Y. Ramp contract, except that there are differences to be found in respect of the dates of the contracts, the acreage, the period covered, and the place of acceptance. Most of the ten contracts involved in this controversy were secured by the field agents while soliciting in the field. With one or possibly two exceptions, the contracts were secured by the field agents while in the field and the contract so received took the following course: The field agent carried with him the printed blank form of contract and a carbon duplicate. Appropriate insertions were made in the blank spaces in the original and these insertions were of course by means of carbon paper impressed upon the duplicate. A grower then signed the original and his signature also appeared on the duplicate. The field agent attached his signature to the contract and then sent both the original and duplicate to the field manager for his approval and signature. After signing the contract the field manager retained the original and caused the duplicate to be delivered by mail or otherwise to the grower. In some instances the duplicate was promptly returned to the grower, but in other cases the grower did not receive the duplicate until several weeks, and in one instance not until several months after he had signed it. The field agents say that in every case the rider was either attached to the contract when signed by the grower or was shown to him either before or at the time of signing. In other words, according to the testimony of the field agents, the growers had knowledge of the wording of the rider before they signed the contracts. If the testimony of the growers is true, some of the defendants did not see the rider until receipt of the duplicate from the field manager. It is conceded, however, that without exception the rider was attached to the duplicate when received by the grower from the field manager; and it may be added that every defendant, except one, received his duplicate at some time in 1917. With the exception of Britt Aspinwall, all of the defendants made deliveries in 1918 either to the Salem Company or to some other canner or dealer designated by the Salem Company. Aspinwall had leased his loganberry acreage to a tenant who refused to deliver to the plaintiff; and since Aspinwall’s contract of lease with the tenant was not such as to enable Aspinwall to compel the tenant to deliver to the plaintiff, Aspinwall was obliged to and did settle with the plaintiff by paying about $500 as damages. In February, 1918, the federal government commandeered the plaintiff’s plant, and for about a year the plant was engaged in dehydrating potatoes and other products in fulfillment of contracts with the American and French governments. The plaintiff was permitted by the government to handle only a limited quantity of loganberries in 1918, and for that reason the Salem Company directed that some of the defendants deliver their berries to other canners or dealers designated by it. However, the deliveries made in 1918, whether made directly to the plaintiff or to some other canner or dealer, were made pursuant to and in recognition of the contracts executed by the growers and the Salem Company in 1917. In February, 1919, the Salem Company concluded to pay to all the growers with whom it had made contracts, a bonus of one half a cent a pound for the crop of 1919. The reason assigned by the plaintiff for giving this bonus is explained by Mason Wittenberg, the president of the Salem Company, who testified that labor was high and “I felt it our duty to give the grower a further bonus of one-half cent for 1919 to take care of his additional cost.” In February and March of 1918, George Judd, as a representative of the Salem Company, in company with Luther J. Chapin, who was then the field manager, visited the defendants and other growers and “told them we were going to give them half a cent bonus to help take care of the extra cost of handling the crop this year.” At some time in the spring of 1919, but prior to the middle of April, the Salem Company, in the language of its president, “decided we would need more loganberries, and as the market had advanced some we decided to secure them, and it would be necessary to raise our contract price. So we raised our contract price to five cents for the years 1919, 1920 and 1921; and four cents thereafter on a ten-year contract.” At some time in the latter part of April or the early part of May, 1919, the plaintiff did enter into contracts binding it to pay five cents per pound for the crops of 1919 and the two following years. On about April 15, 1919, some of the growers, including some of the defendants, who had contracted with the plaintiff met with the officers of the Salem Company at its office in Salem and discussed the subject of the price to be paid for the crop of 1919. There is a conflict in the evidence not only as to what was said at this meeting but also as to the result of the meeting. The defendants assert that the object of the growers in meeting with the officials of the Salem Company was to ascertain whether the company would pay more than four cents for the crop of 1919; and the plaintiff admits that such was the object of the growers, for the president of the Salem Company testified: “There had been an agitation amongst the growers to procure a higher price along about the middle of April, and all of the growers came down to the plant and stated that they desired an advance in price on their contracts.” Although both the plaintiff and the defendants are agreed that the object of the growers who attended the April meeting was to secure more than four cents per pound, the parties differ as to the amount of the increase asked and the reason upon which the claim for an increase was based by the growers. The plaintiff, through its officers Mason Wittenberg and George F. Judd, says in substance that the growers were advised that the plaintiff had decided to contract for more berries at five cents per pound for the next three years, and that the plaintiff intended to pay all the growers then under contract the same price of five cents per pound for the next three years, together with a bonus of a half a cent for the year 1919, thus fixing the price to be paid for the defendants’ berries at five and one-half cents for the crop of 1919, .five cents for the 1920 and 1921 crops, and four cents for. the subsequent crops. All the growers, according to the contention of the plaintiff, who were present at the April meeting, appeared to be satisfied with the announcement that' the plaintiff intended to pay five and one-half cents for the 1919 crop, except S. V. Ramp, who said “he should have seven and one-half cents.” The point attempted to be made by the plaintiff is that the growers were asking for “an advance on account of the increased cost,” and that the market price did not enter into the calculation. Moreover, the plaintiff says that the market price was at that time seven cents per pound, although it is proper to add that the defendants say that there is nothing to show that any of the growers had knowledge that such was the price at that time; and, indeed, there is evidence indicating that at least some of the defendants were not aware that the market price was seven cents a pound, if such was the market • price. All the defendants were not present at the April meeting; hut the seven defendants who did attend testified substantially like one of them who said that the growers claimed “That under the contract they were entitled to the market price, and to have this company buying on the market.” "When speaking of the April meeting, Mason "Wittenberg stated on cross-examination: “There was some contention that they should have the market price.” Again on cross-examination Mr. Wittenberg testified: “This point was raised by Mr. Eamp that we should pay them the market price.” Mr. Judd stated on cross-examination: “As I remember Judge McNary (who was acting as attorney for the growers) started to make his remarks and brought up that contention about the market price. I stopped him because I did not want to get an argument started there with our growers.” The point attempted to be established by the defendants is that at the April meeting the growers were demanding the market price and were contending that the rider obligated the plaintiff to buy on the open market and entitled the growers to the market price. The officers of the plaintiff say that as a result of the April meeting they thought that, with the exception of probably one person, all the growers were satisfied and would make deliveries, and that the growers, as explained by Mr. Wittenberg, “felt there was not much in their claim as to market price”; but on the other hand the defendants say that they made unequivocal, demands for the market price and unequivocally declared that when they signed the contracts it was represented to them that they would receive the market price in the event the market price exceeded four cents per pound, and that the terms of the rider entitled them to the market price. A committee of three, including Bruce Cunningham, S. Y. Ramp, two of the defendants, and a third grower who is not a defendant, was appointed by the growers to confer with the officers of the plaintiff. This committee met with Mr. Judd at some time in May, 1919; and according to the testimony of Cunningham and Ramp the committee informed Mr. Judd that the growers “will not deliver the berries for less than the market price”; and thereupon Mr. Judd declared in effect that— “They would not buy on the market, or pay the market price this year, next year or any other year under the contract.” Berry-picking commenced on June 23, 1919. When the picking began the market price was nine cents per pound. The picking season does not last more than about six weeks at the most. The berries are highly perishable and require prompt attention and on that account it is the practice of growers to make arrangements for the sale of their berries before picking them, and because of this practice the price obtained at the beginning of the picking season, and not the fluctuations occurring at the end of the picking season, is taken as the market price where there is a contract for the delivery of the entire crop. The ten defendants refused to make deliveries in 1919; and because of such refusals the plaintiff on July 1, 1919, began this suit to compel the defendants specifically to perform their several contracts. A preliminary mandatory injunction was issued on July 2d requiring the defendants to deliver their berries to the plaintiff. The market price, as already stated, was nine cents when picking began on June 23d, and probably the market price was still nine cents at the time of the issuance of the injunction, although the evidence indicates that towards the end of the picking season the price may have made a slight advance. The plaintiff conceded that it was obliged to pay the defendants five and one-half cents under the terms of the rider, for the reason that it had in the spring of 1919 made contracts for berries at five cents and in addition had promised the defendants a bonus of half a cent a pound; and hence the controversy involved three and one-half cents per pound, or the difference between five and one-half cents admitted by the plaintiff to be due the growers and nine cents claimed by the defendants. The preliminary mandatory injunction directed the plaintiff whenever it received berries to pay five and one-half cents directly to the growers and three and one-half cents to the clerk of the court to await the determination of the suit. The injunction was obeyed by the plaintiff and the defendants. When the picking season ended and deliveries had been completed the clerk of the court held in his hands, $23,365.11. If the plaintiff was entitled to specific performance at five and one-half cents, it was entitled to a return of the moneys so held by the clerk; otherwise the defendants were entitled to receive the moneys in proportion to their respective deliveries. The complaint tells about the execution of the contracts with.the several defendants, mentions the fact that deliveries were made in 1918 pursuant to the terms of the contracts, avers that five and one-half cents was the limit of the plaintiff’s obligation in 1919, and alleges that the defendants refused to deliver any of the 1919 crop. The complaint then proceeds to recount the different circumstances relied upon by it for specific performance. The complaint avers that remedies at law would require multiplicity of actions. It is further alleged that practically all the 1919 loganberry crop has been covered by contracts, so that it is impossible for the plaintiff to replace the berries expected to be received from the defendants; that the company has spent large sums in advertising and incurred a large expense in making preparations for handling the defendants’ berries; that relying upon the defendants’ contracts the plaintiff has made resale contracts which it cannot fulfill unless the defendants deliver their berries; that if the plaintiff fails to fulfill its resale contracts it will be irreparably damaged in respect of its trade name, goodwill and reputation. Furthermore, the plaintiff says that if it should replace the berries expected to be received from the defendants, or if it goes into the open market and buys, it will be compelled to pay more than five and one-half cents per pound, with the result that it will be required to pay the advanced price not only for the berries bought in the open market, but also under the terms of the rider it will be required to pay the same advanced price for berries already under contract. The complaint concludes with a prayer which, among other things, asks that the defendants he compelled to deliver to the plaintiff all berries raised by them on the lands covered by the contracts. In this connection it is proper to explain that the plaintiff does not ask that the court attempt to compel the defendants to raise berries, but the court is only asked to compel the defendants to deliver berries if any are raised on the lands concerning which the parties contracted. Besides denials mingled with admissions and allegations the answer contains four further and separate defenses. Because of the nature of one of the contentions made by the plaintiff it will be necessary to give a detailed statement of the first defense. The defendants aver in their first separate defense that the plaintiff solicited defendants to enter into contracts to sell loganberries raised by them during the period beginning with 1918 and ending with 1927; and that in order to induce them to enter into such contracts the plaintiff represented that its purpose was to become assured of a large supply of loganberries to use in manufacturing certain products which plaintiff proposed to manufacture and market, and that the plaintiff would immediately build and operate in the Willamette Valley additional manufacturing plants; and that this would furnish an additional market to the loganberry growers of the Willamette Valley. The defendants say that the building and operating of such additional plants was a valuable inducement to them “to contract their berries to plaintiff in that the growing of loganberries in the vicinity of defendants’ said lands would be stimulated thereby, and additional demand would be created for loganberries for manufacturing purposes, and the building of such additional plants would insure activity by plaintiff as a purchaser of loganberries on the market.” The defendants further allege that the plaintiff also represented to them: “That it would at all times during the life of its contract with defendants be in the market during each and 'every loganberry season for the purchase of loganberries and would purchase loganberries upon the open market. That the contract tendered to these defendants for execution fixed a price of four cents per pound for such berries. That these defendants refused to execute the contract as tendered, whereupon plaintiff agreed that if these defendants would sign said contract, which was on a printed form plaintiff would in all years during the life of said contract pay the highest market price to these defendants and each of them for loganberries, but in no event should the price paid to these defendants be less than four cents per pound for each pound of loganberries delivered to plaintiff under the terms of said contract, and plaintiff further agreed that it would, before approving and signing said contracts, and each thereof, attach thereto and make a part thereof, a clause providing that ‘Salem King’s Products Co. will pay upon this contract in all years the highest market price for loganberries, but in no event less than four cents per pound “That the contract in the form which it was presented to defendants was in duplicate and on a printed form, and it was represented by plaintiff to defendants, and each of them, that the only convenient way in which to transact the said business was for defendants to sign said contracts in duplicate after which signature the said contracts would be signed on behalf of plaintiff by officers of plaintiff duly authorized so to do, and it was also represented by plaintiff to defendants, and each of them, that if they would so execute said contract in duplicate plaintiff would also execute the same, attach to both duplicates of the contract the clause aforesaid and return one thereof to each of the defendants.” Continuing the defendants aver: “That defendants, and each' of them, believed and relied on each and every of the representations so made by plaintiff and so believing and relying and not otherwise executed the said printed form of contract, and defendants, and none of them, would have signed said contract but for said representations and promises. The said representations were in every case made by plaintiff with intent that they should be believed and relied on by defendants, and each of them, but said representations were false, were known by plaintiff to be false and were made with intent to deceive and defraud defendants, and each of them. That plaintiff had no intention of constructing the additional manufacturing plants aforesaid, and in fact has not done so. That plaintiff had no intention of purchasing berries on the open market and in fact has made no such purchase. That the clause attached by plaintiff to said contract did not conform to plaintiff’s representations but was as follows: ‘If Salem King’s Products Co. raises their buying price to other growers in 1918, or thereafter, this contract will automatically conform with that price.’ That if plaintiff had purchased berries on the open market the clause attached to said contract would have effectuated the intent of the parties and would have obligated plaintiff to pay defendants, and each of them, the market price of said berries. That defendants on receipt of said contracts believed and relied on said representations as to such purchases so to be made, and so believing and relying made no complaint that the contract as drawn and executed by pla.i-ntiff did not conform to the agreement entered into.” The defendants tell about the use made of the plant in 1918 for dehydrating potatoes for the government and the defendants also tell about having delivered their crops in 1918 to the plaintiff or persons designated by the plaintiff, and then the defendants allege that when the picking began in 1918 the market price was from three and one-half cents to four cents per pound, and that when they delivered their berries in 1918 for four cents per pound they believed that they were receiving the highest market price for them.' The answer continues with the following paragraph : “That the price of loganberries in the Willamette Valley in the State of Oregon and in the location where defendants’ said loganberries are grown at the time the restraining order herein was passed, was and now is nine and one-quarter cents per pound delivered, and has been in excess of four cents per pound since the month of March, 1919. That in the month of April, 1918, plaintiff began inquiring of defendants and said other loganberry-growers as to whether they would deliver their loganberries grown in the year 1919 to defendants at four cents per pound, and about the fifteenth day of April, 1919, these defendants notified plaintiff that they would not deliver any berries to plaintiff under the pretended contract fraudulently prepared by plaintiff as hereinabove set forth, demanded cancellation of said contract and told plaintiff that it must go upon the market for such berries as it needed unless plaintiff would pay to defendants for their berries the market price as agreed upon as hereinabove alleged. The plaintiff then and there refused to pay to defendants, or any of them, the market price of said berries, and this was the first knowledge of defendants, or either of them, that plaintiff would not perform its contract as agreed upon.” The second defense alleges a failure of consideration. This defense is based upon the theory that the alleged failure of the plaintiff to expand its plant in conformity with its alleged promise and the refusal of the plaintiff to buy loganberries on the open-market in conformity with its alleged representation and promise, amounted to a failure of consideration for the contracts. An estoppel is pleaded in the third separate defense. It is alleged in this defense that the plaintiff represented to the defendants: “That the clause which plaintiff proposed to attach as a rider to said contract after it had been signed by these defendants, and each of them, would bind and obligate plaintiff to buy loganberries from the grower and on the open market in each and every loganberry season covered by said contract. That these defendants, and each of them, are farmers, are not learned in the law governing construction of contracts, and believed and relied upon the said representations, and so believing did not complain that said rider is not in the language in which it was promised to be.” It is then averred that if the rider attached to the contract does not in fact obligate the plaintiff “to have a buying price in good faith to the grower upon the open market during each and every loganberry season covered by said contract,” the plaintiff ought to be estopped to assert that it is not so obligated to buy from the grower upon the open market. The alleged fourth defense is in substance an affirmative declaration that the plaintiff has an adequate remedy at law. The suit was heard and decided by the two circuit judges for the third judicial district sitting together. There was a decree canceling the contracts and directing the clerk to distribute the moneys in his hands to the several defendants in proportion to deliveries made by them. The plaintiff appealed.