Lachmund v. Moore , 51 Or. 217 ( 1908 )

Mr. Chief Justice Bean

delivered the opinion.

There is a sharp conflict in the testimony as to what occurred at the time the contract was executed in reference to the first payment and the giving of the promissory note for the amount thereof to be made by defendants thereunder; and also as to what occurred when defendant Moore called at the office of plaintiffs the day after the contract was signed, returned the check and obtained possession of the promissory note; but it is unnecessary to enter upon a consideration thereof. It is admitted that the check was returned, and that the first payment was never made by the plaintiffs. Assuming, however, that the giving of the check was, under the circumstances, a compliance with the contract, and that defendants’ notice of rescission was ineffectual, it is undisputed that, when the second payment became due, plaintiffs refused to make it, unless defendants would execute and deliver to them a joint and several promissory note for the amount thereof, due one day after date. This was a condition that plaintiffs clearly had no right to exact. Under the contract they were to purchase from defendants 15,000 pounds of hops to be thereafter delivered, and to make certain advances on the purchase price at stipulated times, to enable defendant “to pay the expenses of properly cultivating and caring for the hopyard, and of picking, drying, curing and baling the product thereof,” the amount of such advances, with interest, to be credited on the purchase price upon the final payment. There is no express agreement that defendants shall repay to plaintiffs the advances, or that they shall give negotiable promissory notes therefor. The contract was made, as all parties understood, to enable defendant Nash to obtain money with which to produce the hops contracted to be sold, and it was never contemplated that his codefendants should obligate themselves’ for the money to be advanced by plaintiffs, and thus furnish the credit therefor. When, therefore, plaintiffs refused to make the payment due May 12, 1906, unless defendants would execute to them a negotiable, promissory note, they violated the terms and conditions of the contract on their part.

And, as such payment was a condition precedent to their right to enforce the contract (Faber v. Hougham, 36 Or. 428: 59 Pac. 547, 1111), it necessarily follows that the decree of the court below must be reversed, and the complaint dismissed. Reversed.