Livesley v. Krebs Hop Co.

*359Argued Feb. 1, decided March 1, re-argued on rehearing Aug. 4, 1910.

On the Merits.

[107 Pac. 460.]

The complaint, after alleging facts in substance as above, further alleges, in effect: That during the year 1906 no hops were harvested or baled on the premises described in the contract until after the 1st day of September of that year, and that at all times, from the 1st day of September, 1906, until after the 15th day of October, 1906, hops, of the kind and quantity mentioned in the contract, were of the reasonable market value of 14 cents per pound. That defendant company did not deliver or tender to the plaintiffs any of the hops raised upon said premises in the year 1906, but raised more than 100,000 pounds of hops, which it retained and sold, and for which no accounting or offer of accounting has been made to plaintiffs. That on April 30, 1908, plaintiffs made to defendant the following tender in writing: “To Krebs Hop Company, a Corporation, Salem, Oregon: We, the undersigned, T. A. Livesley & Co., do hereby offer to pay to you and do hereby tender to you the sum of $127.55 in money in full payment, settlement and satisfaction of that certain .judgment obtained by you against T. A. Livesley and John J. Roberts, doing business under the name of T. A. Livesley & Co., in the Circuit Court of the State of Oregon, for Marion County, Department No. 1, on the 16th day of July, 1906, for the sum of $4,048.00 and $39.30 costs and disbursements, as appears by your cost bill on file therein, from which said judgment, T. A. Livesley & Co. appealed to the Supreme Court of the State of Oregon, and which said judgment was affirmed on appeal by the Supreme Court, December 17, 1907. This tender is intended to cover any loss on your part on account of any additional interest you may have had to pay by reason of our failure to pay to you the said advances sued for in said cause, and also your costs and disbursements in the Circuit Court and your costs and disbursements in the Supreme Court and legal interest thereon. And we hereby tender to you and offer to pay you any and all legal damages, if any, which may have resulted to you in the year 1906 on account of our failure to make the said advances to you and on account of our withdrawal from the contract sued on therein, and we hereby demand the immediate cancellation and satisfaction by you of the whole of the said judgment. Dated at Salem, Oregon, this the 29th day of April, 1908. T. A. Livesley & Co., by John J. Roberts.” The further averments in the complant, so far as material to the controversy, are: “That it is unjust and inequitable and unconscionable to require plaintiffs to pay said judgment for part of the purchase price of said hops, when the defendant has failed and neglected to deliver to plaintiffs the same or any part thereof, and failed and neglected to account to plaintiffs therefor, and plaintiffs would be unable to have any redress against defendant after paying said judgment. That the said action was brought long before the time mentioned in the contract for the delivery of the hops in 1906, and the plaintiffs could not make any defense thereto on account of nondelivery of the hops, and the failure of defendant to make any accounting thereof to plaintiffs, and that the defendant took an unfair and unconscionable advantage of plaintiffs by suing upon the contract, instead of bringing an action for damages on account of the breach thereof on the part of plaintiffs for-not making said advances on the purchase price of said hops. That the only damages that could have resulted to defendant on account of the failure of plaintiffs to pay said advances sued for in said action, and their withdrawal from said contract, is any additional interest it might have had by reason of such failure on the part of plaintiffs, and the said costs and disbursements and legal interest thereon. That plaintiffs have no knowledge or information of any other damages sustained by defendant on account of plaintiffs’ said failure to make said payments on said contract for the year 1906, or on account of their withdrawal from said contract, and that said sum of $127.55 so tendered to defendant will cover all said damages. That the plaintiffs do hereby tender to defendant and bring into court said sum of $127.55 in payment and satisfaction of said judgment and do hereby offer to pay to it any and all additional damages, if any, which may have resulted to defendant in the year 1906 on account of their failure to make said advances, and on account of their withdrawal from said contract, after a due accounting and the amount thereof duly ascertained by the court. At the time said contract was entered into the Krebs Hop Company was the owner and in possession of the lands described in said contract comprising more than 640 acres of land in the county of Polk, State of Oregon, and was the owner also of other lands situate in Marion County, Oregon, a part of which was planted in hops and was amply able to fulfill said contract, but, subsequent to the date of said contract, the defendant became involved, and on or about the 4th day of November, 1905, conveyed the lands described in said contract and the whole thereof and also all other lands owned by it in Marion County, Oregon, and plaintiffs aver that they are informed and believe, and therefore allege, that the defendant owns no property in Marion County, or in Polk County, or elsewhere, and is wholly unable to respond in damages or to pay or discharge any judgment which plaintiffs might recover against it in an action at law, and as plaintiffs are informed and believe and therefore allege the defendant is insolvent. That the plaintiffs have no plain, speedy, adequate, or any remedy at law, and will be irreparably injured without the intervention and protection of a court of equity. Wherefore said plaintiffs pray for a preliminary injunction of this honorable court against the defendant herein, enjoining, restraining, and prohibiting it, its attorneys, agents, servants, and employees from applying for a writ of execution for its collection of said judgment and mandate, and that the clerk of said court be enjoined and restrained from issuing said writ of execution, and that the sheriff be also enjoined and restrained from executing any such writ of execution which is or shall at any time be placed in his hands for service, and that said defendant be enjoined and restrained from collecting said judgment, and that on the final determination of this suit that plaintiffs be granted a decree herein setting aside, cancelling, and satisfying said judgment and mandate upon plaintiffs paying said damages, and that plaintiffs have judgment against said defendant for their costs and disbursements of this suit, and for such other further or different order in the premises as to the court shall seem meet with equity and good conscience.” To this complaint defendant answered, admitting the execution of the contract alluded to, the trial of the action, and obtaining of the judgment alleged in the complaint, but denied each and every other allegation in the complaint, except the service of the notice in writing on April 30, 1908, as set out therein, and as an affirmative defense, in substance, avers that since February 1, 1906, plaintiffs have wrongfully claimed and maintained that defendant committed a breach in the contract, and has wrongfully claimed the contract was null and void (in support of which reference is made to the decision of the Supreme Court, 51 Or. 527 [92 Pac. 1084]), on the grounds-that the contract so made was untenable; that in addition to the actions referred to in the complaint defendant had recovered judgment against plaintiffs in the sum of $6,000, with costs added, for plaintiffs’ failure to perform their part of the contract during the year 1907, which judgment is now unsatisfied, and from which T. A. Livesley & Co., the plaintiffs, have prosecuted an appeal to the Supreme Court; that, in addition to other damages incurred, by reason of plaintiffs’ failure to comply with the contract, the defendant has incurred heavy expenses in the sum of $2,000 for attorney’s fees, disbursed by appellants in the several actions; that the present suit is instituted for the purpose of delay, and with the view of requiring defendant to incur further expense, for which reason dismissal of the suit is demanded. A demurrer was interposed to. the new matter in the answer, on the grounds that it did not state facts sufficient to constitute any answer, but was overruled. A reply followed, admitting, in effect, that since February, 1906, plaintiffs maintained that defendant had committed a breach of the contract, as stated in the complaint, and that in March, 1906, they gave notice of rescission on their part of the contract; that the Supreme Court had decided as alleged; that judgment was obtained for the $6,000 damages as averred, and from which an appeal is pending, in reference to which appeal it is alleged that plaintiffs gave an undertaking for stay of proceedings. Plaintiffs then deny any knowledge or information respecting the $2,000 additional damages for attorney’s fees, etc., of that this proceeding is instituted for delay, etc. The cause was tried before the court, resulting in a decree of dismissal of the suit, including a dissolution of the temporary restraining order, previously issued, from which this appeal is prosecuted. Pending the appeal an ex parte application was made to this court for an order, restraining defendant from proceeding with the collection of the judgment, and asking that its enforcement be enjoined until the final determination hereof, which order was granted. See Livesley v. Krebs Hop Co., 97 Pac. 718. Affirmed. For appellants there was a brief over the names of Messrs. Teal & Minor and Mr. William M. Kaiser, with oral arguments by Mr. Joseph N. Teal and Mr. Kaiser. For respondents there was a brief with oral arguments by Mr. John A. Carson and Mr. Thomas Brown. Mr. Justice King

delivered the opinion of the court.

4. The sufficiency of the judgment sought to be enjoined is not questioned, nor does this proceeding seek in any manner to set aside, change, or modify it. Plaintiffs base their claim for an accounting upon the value of the hops on October 15, 1906, the date provided in the contract for the delivery of the quantity agreed to be purchased. The value on and about that date by uncontradicted testimony is shown to have been from 14 to 15 cents per pound. No averment is made, nor is it disclosed, that plaintiffs were willing and able to receive the hops at that time. In fact, it is unquestioned that, whether able to do so or not, they were unwilling to receive them. A written notice had been given by plaintiffs to the Krebs Company in the spring of 1906 to the effect that they had withdrawn from the contract, and would thereafter refuse, in any manner, to be bound thereby. This notice was supplemented and further kept in force by the prosecution of the appeal in the action, in which the judgment was secured, which proceeding was not disposed of until April 28, 1908; also by the additional feature of refusing to accept the crop agreed to be purchased for the year 1907, on account of which a judgment in defendant’s favor for $6,000 damages was finally secured. See 55 Or. 227 (104 Pac. 3). No issue *366is presented relative to the value of the hops at the time any part thereof was sold by defendant, nor does it appear that any claim is made upon that basis. It does appear from the evidence, however, that the hops were kept until the spring of 1907, at which time a large part was sold, and that they were then worth on the market seven cents per pound; but what was received for them is not disclosed. It is also stated, and unquestioned, that at the time of the entry of the mandate April 30, 1908, the hops held over from 1906, and remaining unsold, were worth from 2 to 2% cents per pound. It further appears without contradiction that on October 15, 1906, and until a part thereof was sold, defendant company had all the hops on hand, ready for delivery if demanded, but that no demand was made therefor, and that no offer was made to deliver them. We are of the opinion that under this state of facts, after refusal and continued refusal to recognize the contract as being in force, or to, in any manner, comply with the terms of the contract, plaintiffs are precluded in a court of equity from demanding a settlement upon the basis stated. While the court had, contrary to their contention, held the contract effective, it would be inequitable to hold the Krebs Company to an accounting on the basis demanded.

5. The course pursued by plaintiffs during all the time prior to April 30, 1908, was, in effect, to say to the Krebs Company:

“You own the hops. We do not, nor will we receive them.”

And, although the Krebs Company was at the same time contending for its money and that plaintiffs should accept the hops, it was not bound to sell the crop for the security and protection of purchasers, who were refusing to recognize that they had any interest therein. Under these circumstances, it was for the Krebs Company to *367decide whether it would sell the hops and retain the proceeds, awaiting the final outcome of the pending litigation, or hold the hops in readiness for delivery at the termination thereof, and only in case of fraud, or for an abuse of discretion, neither of which is alleged or shown, could it be held accountable for any greater sum than received therefor.

6. It is well settled that under the facts here presented it was not incumbent upon the defendant, in order to avoid responsibility insisted upon for retention of the hops, to tender a delivery thereof on the date specified in the contract; for, as stated, plaintiffs were refusing to accept, and had not in any way signified a change of heart in relation thereto, and the law does not contemplate the doing of a vain or useless act. Newmark, Sales, § 245; Catlin v. Jones, 48 Or. 158 (85 Pac. 515) ; Guillaume v. K. S. D. Land Co., 48 Or. 400 (86 Pac. 888: 88 Pac. 586) ; Smith Bros. v. Wheeler & Simmons, 7 Or. 52 (33 Am. Rep. 698) ; West v. Washington Ry. Co., 49 Or. 436, 449 (90 Pac. 666) ; Merrill v. Hexter, 52 Or. 138, 144 (94 Pac. 972: 96 Pac. 865) ; Wagner v. Supreme Lodge K. of L. of H., 128 Mich. 660, 667.

7. In the absence, then, of any showing of fraud in holding the hops past the 14 cent per pound market, plaintiffs, not only by their failure to establish their willingness and ability to receive them, but by their written notice and continued determination that they would not accept them, are precluded from insisting upon a settlement on the basis demanded. If the Krebs Company had acted wrongfully in holding the hops, it would have been liable for the highest market price between the date provided for the delivery and time of actual sale thereof. Hamer v. Hathaway, 33 Cal. 117; Learock v. Paxson, 208 Pa. 602 (57 Atl. 1097). But the defendant was not a wrongdoer; hence that rule cannot be invoked against it. If defendant had held the hops until the close of the *368litigation then pending, Livesley & Co. would have been entitled to the hops only; and, if not on hand, then the Krebs Company, assuming plaintiffs could maintain a suit for that purpose, would be required to account for the moneys received therefor. The evidence before us is inadequate for an accounting on that basis. In fact, the course pursued at the trial, as well as in this court, clearly manifests an intention to rely solely upon the value of the hops on or about October 15, 1906. The reason for such sole reliance.is obvious; for the market value of the hops at the date of the sale was seven cents, and of those on hand at entry of-mandate in the action, wherein the judgment was secured, but 2y2 cents per pound, disclosing a loss to defendant.

8. Counsel for defendant insist that, under the provisions of Section 559, B. & C. Comp., a ten per cent penalty should be imposed. We are unable to accede to this view. The legal problems presented we have not found easy of solution, and are of a cfess concerning which eminent counsel may differ, as they appear to do in this instance. The suit was manifestly instituted and prosecuted in good faith, and accordingly does not come within the statute invoked.

The decree of the court below is affirmed, and the restraining order here issued dissolved.

Affirmed; Restraining Order Dissolved.

Mr. Justice Slater, having been of counsel in the former proceeding, did not participate herein.