The contract entitled the defendant to receive ten cents per box for "marketing services." A reading of the transcript of the evidence discloses that it was apparently conceded during the course of the trial that the defendant was entitled to that charge; the trial judge thus instructed the jury: "* * * the defendant would, in any event, be entitled to a credit of ten cents per box." Respondent's brief, after referring to the above instructions, states: "The jury, evidently, disregarded this mandate and returned a verdict for the full amount sued for." It is thus conceded that the item of ten cents per box has not been received by the respondent, although it was entitled to it. It is true that the defendant's answer does not plead this item by way of counterclaim. But since the plaintiff bases his cause of action upon the contract, and alleges "that the plaintiff has fully performed his said contract," *Page 562 it was unnecessary to do more than deny this allegation. The defendant merely sought to defeat the complaint. At any rate, both the Constitution of this State (Oregon Constitution, Art. VII, section 3) and its statutes (section 1-911, Oregon Code 1930) enjoin us to disregard errors of pleading which are non-prejudicial when we can clearly see the judgment that should be entered. Moreover, I am of the opinion that the plaintiff is not entitled to any judgment whatsoever. The alleged buyer (Duckwall Bros., Inc.) which he produced was not shown by the evidence ready and willing to buy upon terms which would have reimbursed the defendant for the sums of money (more than $10,000) which it had advanced to the plaintiff. A factor has a lien upon the merchandise in his possession for the sums which he has advanced to his principal, and can not be required to surrender possession until his charges have been paid. The contract of the parties expressly recognized this lien, for it recites:
"Grower hereby mortgages above mentioned crop to Company as security for the following: (a) The repayment of the sum of money hereinabove specified to have been advanced and all moneys hereafter advanced to or for account or benefit of grower by company."
The complaint does not even allege that the plaintiff, when he made the alleged request that the defendant should sell the apples to Duckwall Bros., was ready, willing and able to repay to the defendant the $10,000 which it had advanced to the plaintiff. It is true that the contract provides:
"If Grower shall procure a purchaser for said goods, Company shall be put in communication with said purchaser, when it shall, subject to the other terms hereof, consummate said sale on behalf of Grower." *Page 563
But no evidence was introduced capable of supporting a finding that Duckwall Bros., Inc., was "a purchaser"; that is, ready and willing to buy the apples. The evidence indicates that they were a prospect; that is, interested. Mr. Duckwall, being the individual with whom the plaintiff had discussed a possible sale of the apples, as a witness for the plaintiff, described the state to which the negotiations had gone, thus:
"I can only say this: If we had a deal in mind, that the details of that deal would have to be worked out at the time the deal was completed. But I don't know as we had any definite idea at the time as to just how that payment would be made."
Apparently the cause of action was predicated upon the theory that the above-quoted provision of the contract authorized the plaintiff to demand that the defendant, as his agent, should sell the apples to Duckwall Bros.; that when it did not make the sale it breached its duty to the plaintiff, and that the plaintiff was damaged thereby. But there is no proof of damage because no one testified to the value of the apples upon a cash sale. Mr. Duckwall testified to the price that he was paying for apples upon a deferred payment plan. Apart from his testimony, no one mentioned the value of apples.
Since the complaint did not allege that the plaintiff was ready, willing and able to discharge the defendant's lien upon the apples, the demurrer should have been sustained. Since the evidence did not disclose the value of apples nor indicate that either the plaintiff or Duckwall Bros., Inc., was willing to pay to the plaintiff a sufficient sum to discharge the defendant's lien, the plaintiff is not entitled to the judgment which he now possesses.
For the above reasons, I dissent from the opinion of the majority and hold that the petition should be allowed. *Page 564