STRAUS V. J. M. RUSSELL CO.
below, and confound all the ,distinctions which distinguish an appeal from a writ of error. The hlll of exceptions sets out the numerous applications, notices, letters, policies, charters, and by-laws therein referred to as having been read upon the hearing. What ultimate facts are proven by all this evidence are, not s}:lOwn by the agreement itself, nor is there any special finding of facts based upon all this evidence by the trial judge. An agreed statement of facts which will,be accepted as the equivalent of a special finding of facts must relate to and submit the nltimate conclusions of fact, and an agreement setting out the evidence upon which the ultimate facts must be found is not within the, rule stated in Supervisors v. Kennicott, 100 U. S. 554."
To the same effect is Raimond v. Terrebonne Parish, 132 U. S. 192, 10 Sup. Ct. 57. The insufficiency of the record in the present case is still further disclosed in the assignments of error, which are directed mainly to the opinion of the court, and cannot be considered, since the opinion of the court is no part of the record; and the only exception in the record is to the decision of the court "upon the grounds that it was against law, and against the weight of the testimony in the cause] and .not warranted by the testimony of the cause." As the record does not present any question to this court for determination, the judgment of the circuit court is affirmed. ROSS, Circuit Judge, being disqualified, took no part in the decision.
STRAUS v. J. M. RUSSELL CO. (Circuit Court, D. Oregon. 1. March 1, 1898.)
CONTRACTS-WAIVER-PLEADING AND PROOF.
In an action for breach of contract, a party who has pleaded waiver of a stipulation by subsequent contract cannot be allowed to rely on a waiver by conduct. A stipulation by the purchaser to make advances on a given date, before the time fixed for any shipments, is not waived by the seller by making shipments of part of the goods, though the full amount has not been advanced according to the stipUlations.
SAME-DEPENDENT AND INDEPENDENT PROMISES.
A stipulation by the purchaser to make specified advances on a certain date prior to the time of shipment of the goods will not be construed as an independent promise, when both parties understand that such advances are necessary to enable the seller to procure the goods ;from other parties. In such case the advances are a condition precedent to performance by the seller.
This was an action at law by Theodore L. Straus against the J. M. Russell Company to recover damages for breach of a contract of sale. The case was heard on a motion by plaintiff for new trial. Wirt Minor, for plaintiff. Milton W. Smith and Zera Snow, for defendant. BELLINGER, District Judge. This is a motion for a new trial, by the plaintiff, upon the ground that the evidence was insufficient to justify the verdict, and because of errors occurring at the trial, and excepted to by the plaintiff. The controversy grows out of a hop can-
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into between the parties on the 9th day6fApHI, 1896, the ,material part of which contract is as .
.'''That the said party of the first part, in consideration of the covenants hereinafter contained on the party of the second part to .be performed, does hereby agree to sell and deliver to the party of the second part five hundred (SOO) bales of choice Oregon hops, of the growth of the season of 1800, said hops to be well cured, well picked, and well baled,and no bale to weigh less than one hundred and seventy (170) pounds, and not more than two hundred and fifteen (215) pounds, with an allowance for tare of seven pounds for each bale. 'I'wo' hundred (200) bales to be shipped not later than the 15th of Oytober, 18(:)6, and one hundred and fifty (150) bales In November, 1896, and one hundred and fifty (150) bales in December, 1896; the party of the second part, however, to have the privllege ofl'equlrlng that said November and December shipments be made in October, or that the December shipment be made In November, upon ten days' notice to that effect to the said party of the first part. The ';Iarty .of. the second part, in of. the premises, hereby promises and Agrees to pay for saili hops ·at· the rate of seven and one-half cents per pound' 'net, upon being advised that said hops have been shipped 'f. o. bo' at said: 'city of Portland. Said to be made as follows: Twp· thousand (2 l ®O) dollars to be paid on September 1st, 1896, and the bal/mcl! .to be paid when said hops are so delivered on 'Cars In Oregon; of the said first payment of hvo thousand (2.000) dollars, twelve hundred 01;200) dollars to be· credited to the first two hundred (200) bales so shipped, and the ,remaining eight hundred (800) dollars to be credited to the second shipment of one hundred and fifty (J,50) baies; and all payments after the first. two thousand (2,000) dollars to be made punctually at the time of the shipments of. said Mps." ,
The plaintiff alleges that he complied with this contract on his part, except that he did not make the payment of $2,000 on the 1st day of September, 1896; but that on the 15th day of October, 1896, the plaintiff and the defendant entered into a further agreement, by which it was agreed that the defendant should and did waive plaintiff's failure to pay the $2,000 due.onthe 1st day of September, 1896, and by which it was agreed that the defendant would fulfill and perform alI things in the contract on its part to be performed; and that, in consideration thereof, the plaintiff would ,accept and receive and purchase all hops pursuantto the terms of said contract, and would pay for the same the price thereofmentioued in the said contract of April 9, 1896; and that, accordingly, on the 15th day of October, 1896, the defendant shipped to the plaintiff 200 bales of hops, pursuant to the contract of April 9th, and pursuant to the agreement between the defendant and the plaintiff, and. drew its draft upon the plaintiff, through the London & San Francisco Bank, of Portland,. Or., for the sum of $2,707, and attached to such draft a bill of lading for the said 20Q bales of hops shipped to the plaintiff as aforesaid, which draft was paid upon presentl1tion, by tbeplaintiff; and it is alleged that the plaintiff is ready and for the remaining 380 bales of hops which the defendant by the said contract of April 9th agreed to sell and him, and to pay for the same at the rate 7i cents per pound upon the delivery of the same free on board the cars at Portland; and he fOrther ·alleges that on the 2d day of November, 1896, the plaintiff exercised the option reserved to him by his contract, and notified the defendant, in writing, that he desited the remaining 300 bales, which by said contract defendant agreed td sell and deliver in the'lnorlths Of November and December, 1896, to be delivered in Novelllberi'1896, but the defendant has wholly failed and neglected to sell and deliver to plahitiffthe remaining
STRAUS .V.J. M. RUSSELL CO.
300 bales of hops. Then follows an allegation of the damages sustained by reason of the failure so alleged. The defendant denies the alleged contract of October 15, 1896; and it alleges that prior to the execution of said contract, and ever since, the plaintiff was informed and well knew that defendant could perform said contract only by making subcontracts for said hops with the ers thereof in the state of Oregon, and that said growers could not fulfill said subcontracts with defendant unless the defendant advanced them a certain proportion of the purchase price of said hops to pick, cure, and bale the same; that the said sum of $2,000 provided by said contract to be paid to defendant by plaintiff on September 1, 1896, was necessary to enable defendant to advance said picking money to said growers; and that the prompt advancement of said sum by plaintiff was a condition precedent to the performance of any part of said contract by defendant; and it alleges, among otber things, that about October 15, 1896, the defendant shipped to plaintiff the 200 bales of hops provided for in said contract, reserving at the sam.e time to itself all rights that had accrued to it by reason of the breach of said contract by plaintiff, and defendant was paid therefor the contract price ; that plaintiff then again refused, failed, and neglected·. and ever since has refused, failed, and neglected, to advance to plaintiff the remainir:= $800 of the l!.dvancement of $2,000, and the defendant thereupon and thereby was rendered and became unable to carry out the remainder of said con· tract, and to make any ()f the remaining shipments of said hops. . The reply denies the allegation that defendant relied upon the advances provided for in the contract, to provide growers with money to enable them to pick and cure their hops, as alleged in the answer; and the reply further alleges that the defendant is estopped to say that it relied upon the payment of the $2,000 on September 1, 1896, or that, by reason of default in the payment of any sum under that coutract, defendant was unable to fulfill the contract alleged in the complaint, or any part thereof, or that it has suffered damages on account of any breaches of the contract, made prior to the 15th of October, 1896, because after said 1st day of September defendant elected to hold plaintiff personally liable for the payment of the sum of $2,000, and elected to enforce the provisions of said contract as against plaintiff with respect to said sum, and to fulfill the provisions thereof on its part; and that the defendant is estopped and should not now be allowed to say that the plaintiff has made any default in anything on his part to be done under the contract of April 9, 1896; and that it should not be heard to say that it has sustained any damages by reason of any default, for that on the 15th day of October, 1896, and after the shipment by defendant of the 200 bales of hops and the payment therefor of $2,707 by plaintiff, as stated in the complaint, in consideration thereof, and upon. the further consideration that the plaintiff would perform and carry out all the other provisions of the said contract of April 9, 1896, the defendant agreed that it would carry out and perform all things on its part to be observed and performed, in effect as though there had been no breach on plaintiff's part of the contract as it originally stood. It is now claimed on the part of the plaintiff that the agreement on plaintiff's part to advance $2,000 on the 1st day of September,
8r) FEDERAL REPORTER.
1896, was not a condition precedent, upon the breach of which by the plaintiff the contract might be avoided by defendant, but· was an independent covenant, for breach of which an action would lie in favor of the defendant, and against the plaintiff, and the error ofthe court relied upon is its refusal to so instruct the jury. The agreement of the plaintiff was to pay for the hops contracted to be delivered by the defen.dant, by advancing the sum of $2,000 on the 1st day of September, 1896. Of this amount, $1,200 was to be applied upon the first shipment of hops, and $800 was to constitute an advance payment on the second shipment to be made under the contract. It will be seen that the case made in the pleadings differs from that relied upon in the motion for a new trial, in this: On his motion, the plaintiff contends that the advance payment to be made on the 1st day of September was an independent covenant, and that the failure on his part to comply with it did not warrant the defendant in the refusal to deliver the hops contracted for; while the case made in the complaint is that there was on the 15th day of October a supplemental or further agreement between the parties, by which the contract as it theretofore existed was modified and changed, and the case was submitted to the jury upon the issue thus presented, and although there was no testimony directly tending to prove the exist· ence of any such contract, yet the court left it open to the jury to find, as a matter of implicatiou, from all the facts in evidence in the case, whether such an agreement was, in fact, entered into between the parties. I am of the opinion that the plaintiff has no cause of complaint in this regard. The only question of doubt there is in the matter, in my mind, is as to whether the court did not go too far in allowing the jury to find, as they might have done, in favor of the plaintiff as to the contract of October 15th, in the absence of any testimony directly tending to prove such contract. This contract, like all others, must be judged by the rule of com· mon fairness between the parties. It is apparent that the intention of this contract, and the consideration for it on the part of the defendant company, were the payments contracted to be made at the time provided for; that these advance payments were to enable the defendant on its part to make advances,in its turn, to those from whom it expected to procure the hops with which to comply with its contract with the plaintiff. At least, there was testimony tending to prove this fact. The effect of the contract was that, of these advances, $1,200 was to be applied upon the first shipment of hops, and $800 was to be applied upon the second shipment, making a further payment necessary upon the first delivery, in order to complete, with the $1,200 on deposit, the payment for the hops to be then delivered. The plaintiff cannot be heard now to say that there was a waiver, by conduct on the defendant's part, of his own failure to comply with his contract when he has alleged that there was a waiver by c:ontract. He must prove his defense as alleged, instead of which, in its present posture, he abandons altogether the claim of the contract of waiver, and relies upon the conduct of the defendant in making its first shipment of hops, and in drawing upon him for the payment therefor, as tending to prove waiver by conduct. But, as to
this, the testimony of Mr. Whidden, one of the parties, is that he visited the plaintiff about the forepart of September, 1896, and had conversations with him in respect to his failure to advance the money as contracted for; and that he then stated to the plaintiff that the defendant would probably ship the hops he had already contracted for, notwithstanding his failure to pay the $2,000 as agreed; but that he gave plaintiff to understand that no further shipments would be made unless he (the plaintiff) complied with his contract, and this obligation on the plaintiff's part was a continuing one. If the defendant waived the advance as to the first shipment, it does not, in my opinion, follow that it was thereafter precluded from insisting upon an advance of $800 to nieet the second shipment; and if, as the jury had a right to find, the plaintiff was notified, in effect, that the first shipment by the defendant, notwithstanding the failure of the plaintiff to comply with his contract to advance $2;000, was not intended to have the effect of a waiver by the defendant of such failure, but that there would be no further shipments unless plaintiff complied with his contract,-if, I say, these statements were made by Mr. Whidden to the plaintiff, the jury would be warranted in finding that there was no waiver. The fact of the shipment, under the circumstances, does not necessarily have the effect of a waiver, and it would not have that effect if prior to the shipment, or prior to, the payment by the plaintiff of the amount due upon the hops so shipped, the plaintiff is informed by the defendant that its conduct in making the shipment is not to have the effect of a waiver; and such is the tendency of the testimony introduced on the part of the defendant. It is contended on the part of the plaintiff that the rules of law applicable in the construction of this contract are:
"(1) Where a day is appointed for doing any act, and the day is to happen or rpay happen before the promise by the other party Is to be performed, the latter may bring action before performal)ce, which is not a conr1ition precedent: aliter if the day fixed is to happen after the performance, for then the performance is, deemed to be a condition preceqent. "(2) ,When a covenant or promise goes only to part of the consideration, and a breach of it may be paid for in damages, it is an independent covenant, not a condition." ,
These are the rules found in 2 Benj. Sales, § 855, and as to these rules a note in the same work says that they are so general, vague, and difficult of application that they are of little practical use, but, like most arbitrary rules on a question of interpretation, they often lead away from the intent of the parties, instead of aiding to discover it. And the note goes on to quote from Watchman v. Crook, 5 Gill & J. 239, as follows:
"'l'he strong leaning of the courts in modern times has been to disincumber themselves frOUl the fetters of technical rules. and to give such rationai interpretation to the contract as will carry the intention of the parties into full and complete operation."
The authority quoted from (Benjamin on Sales) lays it down that, in the application of these rules"The circumstances under which the contract was made, and the purpose for Nhich it was made, are to be taken Into consideration. The same statement
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mll-y,up,der. certain be merely a description or representation; under others, the most substantial stipulation in the contract." . i
So, bere, the agreement to make advance payments by the plaintiff was, the most substantial stipulation in the contract, not to be lightly. treated by the plaintiff for reasons of his own, in the' expecta1don ,that he could still receive the benefits of the contract without complying with its substantial requirements upon his own part. It is also one of the rules that:
"Where each party is to' do an act at the same time as the other,· as where goods in a sale for: cash are to be delivered by the vendor, .and: the price to be paid by the buyer, these are concllrrent. -conditions, and neither party can maintain an action for breadl of contract, without averring that he performed to perform what hehlinself was bound to .do." .
Now if, under failure to pay price is such a violation of the contract as relieves the other party fromco,J;Upliance, upon what principle of reason can it be held that the failure to pay the purchase, price, in advance does not have the same effect? Can it be said that the party whose may have induced him to stipulate for an advance payment is less favored than one who stipulates for a payment ,upon It is manifestthat the stipulation in this caseJsnQt an independentstipula-. 0lle; that it was a ,condition to be performed tion, but by SiUGh: advance payin advance, iqQrder tb,at a position. to 'comply with the contract on his part. ment, be The conduct, 01 the plaintiff: in this. case does not corpport with fair dealing. In the language of Lord Esher, replying to an address of the attorney general on the occasion of his retiring from his office. as master. ;of, the rolls::
"It is the duty of the judge to findout'whlit is the rule which people of candor and .Ilonor and fairneSS in the position of the two would apply in respeC't to the matter in hand; ,. · · and the canon of law Is that that rule should be adopted andapplfed to the Case .which people of honor and candor and fairness, in.' SUCh. a transaction, wquld each to the Qther."
Judged by such a standard, it ill becomes the plllintiff to say that urged against his right 'of that he did not comply with liis"own stipulation as to these advance payments, but that the defendant, in respect to them, might have had recourse to the courts of law in an indepelldent action. ". Th.e testimony tends to show that he' deliberately an'd premeditafely violated' his contract, forit was the unsettled condition of the politics and that of the countrj; and his fear that the country would go to a silver basis. Because of this fear,he insisted that the .defendant should execute a bond in his favor to seCUi'e him in the advances which he had contracted to make, without any security whatever. Such conduct on his part does not ,comport with candor and fair dealing, and does not entitle him to the favorable consideration which the court is urged to take of his conduct, on this motion. The motion is denied.
it' ought pot
PARKER v. BROWN. (Olrcult Court of Appeals, Eighth Circuit. No. 946. February 7, 1898.)
CONFLICT OF LAWS-TRANSFERS OF PERSONAL PROPERTY.
The fiction of law that personal property has no situs except that of the owner must yield when the polley and law of the state where it is actually located have prescribed a different rule of transfer from that of the state where the owner resides.
.An assignment for benefit of creditors, made by one residing In Iowa, Is governed, as to property located In Kansas, by the Kansas voluntary assignment law, prescribing the xnanner of registration and the effect thereof as notice.
SAME-ASSIGNMENTS FOR BENEFIT OF CREDITORS.
A creditor who Kansas after the owner ors In Iowa, but before notice of the making of
and has recorded a chattel mortgage on goods in has made a general assignment for benefit of creditthe deed Is recorded In Kansas,and without actual the assignment, obtains a prior right.
PARTNERSHIPS-AuTHORITY OF PARTNERS-AsSIGNMENT.
One partner has no authority to make a general assignment of the partnership property for the benefit of creditors except by the express consent of all the partners. On a question whether one partner authprlzed the other to make an assignment, the former was asked by his counsel to relate the conversation between them. He thereupon detailed a conversation about ;raising money to meet their debts, but said nothing about an assignment. He was then asked whether anything was said about an assignment, and answered that he did not remember, but did not think there was. His counsel then asked whether the assignment was made with his consent, to which he replied, "Certainly It was.'" Hcld, that these questions were leading, and the method of examination improper.
In Error to the Circuit Court of the United States for. the District of Kansas.
Prior to January, 1883, J. H. Engle was engaged In general merchandise business atHamburg, Iowa. His son,John R. Engle, who had recently attained his majoritY,was engaged as a clerk in 1892 in a business house at St. Joseph, Mo. According to the testimony of J. H. Engle, he concluded to admit his son into a general partnership in his business at Hamburg. Whether or not the son was in fact admitted into co-partnership In the business at Hamburg Is by .no means clear, In view of the attending circumstances, and a want of any overt act of the parties evidencing such association. About March, 1893, the son was sent to Gaylord, Kan., with a stock of goods selected out of the Hamburg store, and opened Ii· house at Gaylord under the firm name of J. H. Engle & Son. The son thereafter resided at Gaylord, and had personal charge of the conduct of the bwliness there. J. H. Engle continued his residence and business at Hamburg as theretofore under the name of J. H. Engle, occasionally visiting Gaylord for a few days. This adventure at Gaylord proved unsuccessful, so that by JulY,1893, the concern was in a failing condition. On the 15th day of July. 1893, .the concern owed the plaintiff, in error, a banker at Gaylord, for borrowed money, the SUIll of $138.70. About that time J. H. Engle visited the house at Gaylord, to look Into the condition of its affairs. Their creditors were becoming restive and urgent. Plans of relief were discussed between the Engles. Among' other things, It was agreed that J. R. Engle should see Parker, and try to secureaq. additional loan. J. H. Engle returned to Hamburg, Iowa, the. 16th day: of July with the understanding that be would see what he could' accoinpllsh in the. way of ralsing· sufficient money there to tide over the busineSs. On the 17th day of July, J. R. Engle, failing to obtain a further loan