SUPREME COURT PASSES
ON MEASURE OF DAMAGES
Holds the Difference in Price Between That Named in the
Contract and the Market Price at the Time the Goods Are
to Be Delivered Is the True Measure of Damages Sub
ject Thoroughly Discussed in Opinion, and Many Cases
Cited.
OREGON SUPREME COURT DECISIONS
Fill Text I'ulillshfd Lj Coirteiy of F. A. Tamer, Reporter of the
Supreme Coirt
Krebs t. I,lvrnley, Mnrlon County. I Klillg v. IJarnum, supra, no exception
I l ft I . I n ....... t nr l.n lnl.n. 1...4 ll A I J . .
Decided October 3. 1911. I can be taken, but was It the duty of
ln ilalntirr to accept such offer? And
' ...n..l.l It t.n...t 1 M
KrebH Hop company, a coruoratl
plaintiff, v. T. A. Mvesloy and John
J. Roberts, partnerH doing buslneiis
under the firm name and Htylo of T.
A. I.lvexley & company, appellant:.
Appeal from the circuit court for Mar
lon county, lion. George H. Hurnett,
Judgi on petition for rehearing. Af
firmed April 4, 1911. (See 114 Pac.
944.) Carson & Hrown, for resnon
dent. Wirt Minor and Win. M. Kalner,
for appellants. Mean, J. Former opin
ion adhered to.
llean, J. Defendant's uetltlnn for
n rehearing upon the point involving
me measure or damages. For a state
ment and former opinion of the case
see 114 Pacific. 944.
I'rlor to the last date for the deliv
ery or iuu,uu pounds of hops for the
year 1908. according to the terms of
the contract, plalntlrf sent the follow
ing lelter to defendants:
"Salem, Oregon, Oct. 8, 1908.
"Messrs. T. A. I.lvesley & Co.,
"Halmu, Oregon.
"Dear Sirs: Our contract with you,
dated 2.1th August, 19H4, lor the sale
or one Hundred thousand pounds of
hops or the growth of the years 1905
to 1909, Inclusive, provides, ns you are
aware, that wo shall deliver the hops
not Inter than October Kith, f. o. b.
cars Independence or f. o. b. boat at
Murphy's Landing, in 1905 wo deliv
ered the hops on board boat nt Mur
phy's landing at your request. The
contract does not slato whether we or
you have the option of delivering on
board cars or on board boat, but in
any event we are willing to deliver
the hops this ymr wherever you may
designate. Kindly, therefore, let us
know at ones by return mall whether
you desire the hops delivered on board
cars at Independence or on board boat
at Murphy's Landing, so that we may
provide the curs or boat for delivery
as you may desire. We have this '-ear.
one Hundred thousand pounds of hops
of the kind and finality described in
I ho contract, anil we hope you will be
pleased with the same.
"Inviting your Immediate response
we are, yours truly,
, "Krebs Mop Co.,
Hy Leonard Krebs, Vice President"
On the last date stipulated for the
delivery of the hops for that yenr
defendants replied to the above letter
as follows:
' ,.u- , "0,,t- 1'r,th, 1308.
hrebs Hop Co., Salem, Oregon.
"(lenllemen: We have received your
registered letter of the 8th Inst. You
nrn aware that we do not regard this
contract as In force. yu ,,(, know
thnt we do not think It Is our business
to say whether you should deliver the
hops. If the contract were In force at
Murphy's Landing or at Indepen
dent. We decline to recognize the
contract In any way.
"VVe are In the market, however, to
buy hops, and to pay the market price
Tor such hops ns wo wish. We have
no objection to buying your hops In
dependently of any contract. If you
have loo.ooo pounds of hops of the
growth of 190X, and the same are
prime Oregon hops, and If vou wish
to sell them to us subject to our in
spection, we are willing to buy this
duantlty or hops of said quality from
you, and will pay you fr th same,
r. o. b. cars at Independence, Oregon
eight rents per pound, provided you
will deliver tlie same not later than
the 25th day of October, 1908, and if
you accept this offer, give lis notice
at once on what day you will have
Ihe same ready for Inspection.
"Yours truly,
' '"' A. I.lvesley & Co."
It was admitted hv ,i.,f.,,,.i.,...
the pleadings that on the 15th day or
www.,..,, ,;,,,, ml,,H ot tlm kin( am,
Motility described In the contract were
worth In ll,,. market at the time and
ui ueuvery tlie sum of seven
i ems per pound and no more, and
upon the trial the dlrm-cnce between
this price and the contract price, 11
cents, was taken ns the measure of
damages. '
Defendants In their
lt . . ,,.-, iMi-iiwru
that by reason of the defendants' offer
inn icimer or eigtit cents per pound
for Ihe amount, kind and quality of
hops described In the contract of sale
plaintiff was estopped from saying the
market price of such hops wns but
seven cents per pound, and to sub
stantiate such plea, upon the trial
offered In evidence tlie letter referred
to of October lf.th, M0S, which wns
rejected. Defendants contend that
under the rule, "where two parties
have made a contract which one of
them has broken, the other must make
reasonable exertion to render his In
Jury as light as possible, and he can
not recover from the party breaking
tho contract damages which would
have been avoided had be performed
bis duty." (citing Khlig v. iirmun,
4J Neb. 5S4, that the plaintiff
was In duty bound to accept the offer
or defendants at his peril; In other
words that the measure of plaintiff's
damages Is the difference between the
contract price of the hops and the
price offered by defendants, which
would make a difference of $1,000 00
In the Judgment.
On the part of plaintiff It Is main
tained that the true rule of damages
was applied; that the letter offered
In evidence contained n
conditions, and was au offer by de
fendants to negotiate or make a new
contract, and wns not competent evl
deuce of value or the market price.
(Citing HSuth. on Dam., 2 ed., sec.
(154), and It was not the duty of plaln
tlrf to accept such offer.
With the principle enunciated In
would It have been reasonably safe
In so doing, or can the defendants,
as a matter of right, claim the benefit
thereof? As held In Dustan v. Mc
Andrew, 44 N. Y., 72, upon the fail
ure of a purchaser to perform a con
tract for the sale of personal prop
erty, tlie vendor, as a general rule,
has the election of three remedies:
(1) To hold the property for the pur
chaser, and to recover of hltn the
entire purchase money; (2) to tell It,
after notice to the purchaser, as his
agent for that purpose, and recover
the difference between the contract
price and that realized on the sale;
(3), to retain it Is his own, and re
cover the difference between the con
tract and market prices at the time
and place of delivery. (Citing II Par
sons on Con:, 484; Sedgwick on Dam.,
282; Iwls x. Grelder, 49 Barb. (N'.Y.)
0; Pollen v. LeRoy, 30 N. Y. 549.)
In the case at bar the nlnlntlfr
chose and the trial court applied the S9n of Portland, adopting the report
uuru ruie. in tiavemoyer v. cunning- me viewers in tne matter of the
ham, 35 Uarb. (N. Y.), 615, In an ac
tion of damages for the breach of a
contract to sen an invoice of sugar.
protesting at the time he does them
that be does not Intend to subject
himself to such consequences. In
the case of the Bank of the United
States v. The Bank of Washington. 6
Pet. 8, certain payments had been
made to the first bank upon a deci
sion by the court below, with notice
that the payer Intended to take the
cane to the supreme court of the
l'nited States, and would expect the
payee, the Hank of the L'nited States
to refund the money If that court
should reverse the decision of the
court below, and hold that It was not
due. The court said: 'No notice
whatever could change the rights of
the parties so as to make the Hank of
the l'nited States responsible to re
fund the money.' The whole ease of
this relator is covered by Gilbert v.
l'nited States, 8 Wall., 358, In which
this court, through Mr. Justice Mil
ler, said: 'If the claimants had any
objection to the provisions of the
contract they signed, they should
have refused to make it. Having
made it and exernteil it. thnlr mnntlia
are closed against any denial that It
superseded all previous arrange
ments." The offer of defendants contained
in the letter, as Its terms indicate,
was a proposal to make a new con
tract, concerning the same subject
matter embraced in the original con
tract, and we do not think tlie plain
tiff was required to accept the same
or be governed thereby. It could
not make the new contract without
danger of further complicating the
Issues In a prospective action.
We adhere to our former opinion.
Mr. Justice Hurnett took no part In
this decision.
City of Portland v. Investment Co
Multnomah County.
Decided October 3, 1911
The City of Portland, a municipal
corporation, respondent, v. Investment
company, a corporation, appellant-
Appeal from the circuit court for
Multnomah county. Hon. C. V. Gnn
tenbeln, Judge. On motion to dismiss
Frank S. Grant and II. M. Tomllnson
for respondent. Ralph R. Dunlway,
ror appellant. rcakln, C. J. Allowed.
hakin, C. J. I!y Ordinance No. 21
Children Cry for Fletcher's
& i it
llie KIna You Have Always Bought, and which has been
in Ue for over fiO years, has borno the sitrnature of
JB i 1 .1
I nil
il -, " ' - n
and has been made under his per-
All Counterfeits, Imitations and 'Just-as-good' are hut
Experiments that trifle with and endanger tho health of
Infants and Children Experience against Experiment.
What is CASTORIA
Castoria Is a harmless substitute for Castor Oil, Pare
goric, Drops and Soothing1 Syrups. It Is Pleasant. It
contains neither Opium, Morphine nor other Kareotlo
substance. Its age is its guarantee. It destroys "Worms
and allays Feverlshness. It cures Diarrhoea and "Wind
Colic. It relieves Teething Troubles, cures Constipation
and Flatulency. It assimilates the Pood, regulates tho
Stomach and Bowels, giving healthy and natural sleep.
The Children's Panacea The Mother's Friend.
GENUINE CASTORIA ALWAYS
) Bears the Signature of
brought by the vendee against the
vendor for failure to deliver the sugar
It was held that the rule of damages
for not delivering the sugar was the
difference between the rontriirt nrloa
and the market value on the day of
delivery, and that this rule could not
be varied bv an offer nf ,l,.r,n,iniu
to sell to the plaintiff at a price below
tne value on the day of delivery. Mr.
Justice Ingruham at page 522 says:
"The plaintiffs had a right, to a de
livery or the property purchased at
the stipulated price, and the defen
dants could not relieve tlliiiimn
from the conseuences of their refusal
to dellve.-, by an offer to sell at a
higher price, although lens tinn n.
subsequent market value. Such an
orrer, If accepted by the plaintiffs
before the time of performance ar
rived, might have exposed them to the
charge of having abandoned the first
contract." ,
The rules of damages apply with
equal force to both buyer and seller,
and Krebs Hop company had the right
to demand and receive the stipulated
price upon a delivery of the hops
which were tendered by lt, according
to the terms of the contract, and de
fendants had no right to any advan
tage to be gained by offering to make
a new contract. It has been held that
where a new contract Is made by the
parties In regard to the same subject
matter which entirely supersedes the
rirst contract, no action can be main
tained on a ground of a breach of tlie
tlrst contract. Consumers' Cotton-Oil
Co. v. Ashburn, 81 Fed. 331; 26 C. C.
A. 43G; Note 35 Cyc. til!-,. In the last
mentioned case It was claimed that
there was a contract of September
13, 1893, for sale by the company to
Ashburn of 2(iuu tons of hulls at $2.75
per ton, and 600 tons of meal at $17.25
per ton, and that a subsequent con
tract was made by the parties for the
sale of 100 tons of hulls at $4.00 and
300 tons of meal at $20.00. In an ac
tion by Ashburn for damages for the
failure of the company to deliver the
property according to tlie first con
tract, tho trial court, at the request
of counsel for the company, gave the
following instruction: "The Jury In
mis cuse are instructed, ns a matter
of law, that where a contract has been
made between two persons, and at a
subsequent period another contract,
having reference to the same subject
matter, but changing the relations of
the first contract, is entered Into, the
last, contract controls III' reHi'lmlu iUa
first, though there be no such effect
expressed between the parties
To which the court added 'You
will deterlne whether or not, nt the
time of making tho second contract,
It was the intention or the parties
making the contract to waive or niod
lly the first contract, and whether It
was the Intention of the parties to
make a new contract, separata and
independent or the first, and without
any relntlon thereto."
In regard to this modification of
the Instruction requested. It Is said:
"The question was, and Is here'
W hat was the legal efrect of the sec
ond Instrument on the first? Did the
second supersede, abrogate and take
the place of the rirst contract as a
matter or law? If t,e legal effect of
the second contract, referring to and
covering the same general subject
matter as the first contract, was that
It took the place of the first contract
then the Intention of the parties Is
not- material. We think the efrect or
the second contract was, as contended
for by the counsel (c the company,
that it superseded the first entirely
When he entered Into the second
contract he Inst nil rl.,1.,- i i..,..
, , , iii- iiiiKiu
have claimed under the tlrst. If he
desired to Insist upon his rights under
the tlrst contract. h niir,,,i,i k ......
stood by It. Insisting on its nerforni-'
nnce, and not have made a subsequent '
arrangement."
in I n ted sintou v i .
c n ... miei uiiiiouai I
v . v o.. ii. s., 303, 309, the bl
owing excerpt shows the view or
that court upon similar question-
".Nor does the fact that In making
his second contract, the relator pro
tested that he hn,l rl.,),,D
flrM better his position. If he had
any such rights and desired to main
tain them, he should have abstained
to,., pumng himseir In a position!
....- "iiuiaruy too advantage
of the second opportunity to secure
he work. A parly cannot avoid the
legal consequences of his acts bv
proposed- onenlne-. lnvlnc not nnrl qo
tabllshing of Simpson street, between
me easi line or west Piedmont and
the west line of Commercial street,
an assessment is made of the beneNts
and damages set rorth In the report,
passed August 24, 1!)10, and approved
August 2!). Defendant, who is tho
owner or lots al'fected by the assess
ment, appealed tram such ordinance
to the circuit court, and on motion or
plalntlir tho appeal was dismissed, for
the reason that it was not taken
within the time provided by law, from
which order of dismissal the defen
dant appeals.
The transcript was filed In tills
court May 17, 1911. On September 8,
1911, the plaintiff filed a motion, sup
ported by affidavits, to dismiss the
appeal for the reason that Ordinance
No. 21.890 was repealed by Ordinance
No. 23,519, passed June 15, 1911, and
all assessments made in the proceed
ing, out of which the
troversy in the action grew, were can
celled and there Is now no dispute or
controversy to be litigated or deter
mined. Defendant resists the motion,
urging that the question whether the
time tor appealing is 20 days from the
passage or the ordinance (August 24)
or tlie date of Its approval by the
mayor (August 29) should be deter
mined, being the imlnt I
the motion to dismiss the appeal in
the circuit court
The object of the nnnent n n,
cult court was to determine the valid
ity of tho ordinance and assessments
made thereby against the defendant's
property. The ordinance lw.inu. re
pealed there is no assessment against
uiuiuiiiiH property at this time, and
there Is nothing to lie mi
circuit court It the case were reversed
aim remanded. The rule Is general,
that, when any event occurs pending
an appeal, which renders it Impos
sible ror the court to grant the reller
sought, it will not proceed to final
Judgment but will dismiss tho .,,, i
It will not give opinions on mooted
questions or mere abstract proposi
tions of law, following State v. Grand
Jury, 37 Or. C42, and cases there
cited; also, State v. Fields. 53 Or 4r,t
The appeal Is dismissed.
o
I'ltorns i.s
Willamette Vallcv
Mortgage Five Per Cent Sinking
uml (iolil lloiids, Dated December
1, 11(03.
Nutleo Is hereby given, pursuant
to the provisions of the mortgage to
Oorniantown Trust Company, dated
December 1, 1905. that the under
signed company, ns trustee, will re
ceive sealed proposals up to 12
o'clock, noon, on Wednesday. Octob
er 25, 1911, for tho sale to It of
bonds, as described above, at a price
not exceeding one hundred, and five
per cent (105 per cent) ana accrued
Interest, siifuclont to exhaust aR near
ly as possible tho sum ot $1993 51
now In the sinking fund. Preference
to lie given by the trustee to bonds
offered at the lowest price.
CrERMANTOWN TRUST COMPANY,
Trustee.
Clarence C. Rrlnton, Treasurer
Salem, Oregon, October 2, 1911.
' 10-11-16-18
The Kind You Have Always Bought
In Use For Over 30 Years
THt CrHTU COMPANY, TT MUHr STREET. NEW YORK CITY.
QUALITY IS OUR MOTTO
Pianos, Organs, and the
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Our fall stock of Planoo, Organs and Phonographs Is now In and we
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: 247 N. Commercial Street. Salem, Oregon
T T
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SECOND HAND MaSi
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PIPE PIPE
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M. Barde & Son
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ATTENTION
LAWYERS
We publish legal notlcta as
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us
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Capital Journal
SALEM, OREGON
SOUTH SALEM MARKET PLACE
POISAL & SHAW
General Grocery Store-
We also carry a full lino of cigars, tobacco, candy, paints,
drugu and stamp. Phone 761
H-OtSJtSJ.Sjtttl
DON'T FORBID THE HOT
helping himself from your bread box
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CAPITAL BAKERY
439 Court St.
Phone 904
" .....,f4
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Hot Lake Sanatorium, ort
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Pres. nnd Mgr.
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"Economics" We Can't Afford
In one sense, we could save money by using cheaper soap than
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. SALEM. OREGON