Klinge v. Farris , 128 Or. 142 ( 1928 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is a suit to rescind a contract for the sale of two foxes by defendant to plaintiff. The Circuit Court rendered the decree in favor of plaintiff. Defendant appeals.

AFFIRMED. Plaintiff alleges that the foxes agreed to be sold to him were the best breed and strain of silver fox that could be obtained, superior to any other foxes that could be purchased in the market; that they were good breeders; that plaintiff would have the option of selecting during the following spring, to take either two pups, or an average of the pups raised on defendant's farm for the season, pro rata, and in proportion to the number of pairs of breeding foxes on such farm; that the foxes raised on defendant's farm were strong and healthy, free from nervousness usual to foreign-born and raised foxes. That at the time set for the delivery of the foxes, October 1, 1926, plaintiff called upon defendant and ascertained that defendant could not deliver to plaintiff the two pups agreed to be sold by defendant, and the defendant had no such foxes, but that defendant offered to deliver two foxes raised in Canada, not acclimated to Oregon, which were irritable and nervous, which were inferior in quality, were of the market value of $150 each only and were weak and unhealthy.

The defendant denies the principal allegations of the plaintiff's complaint as to the failure of defendant to deliver, or offer to deliver the foxes as contracted, and sets forth the contract, which he claims was the whole contract, between the plaintiff and defendant, which reads as follows:

"THIS AGREEMENT made this 29th day of August, 1925, by and between the Portland Silver Fox Farms of Portland, Oregon, and H.C. Klinge, of Oakland, Oregon, is as follows:

"The Portland Silver Fox Farms agrees to sell and H.C. Klinge agrees to purchase one male and one female registered and pedigreed silver foxes, for the sum of $2000.00, Two Thousand Dollars, $300.00 cash; $1500.00 assignment of equitable savings loan certificate to be transferred September 6th, 1925, to Portland Silver Fox Farms, $2,000.00 October 1st, 1926.

"The Portland Silver Fox Farms agrees that they will select the foxes purchased under this agreement with a view to their fur qualities, size and prolificness of the strain from which they come, and shall so mate them that there will be no inbreeding. The purchaser agreed to accept the selection so made providing that the foxes come up to the standard specified in this agreement.

"The Portland Silver Fox Farms guarantees that foxes purchased under this agreement will breed true to color, and should they throw any off color pups they will replace them with pure bred registered foxes.

"The Portland Silver Fox Farms agrees to provide suitable ranching accommodations on their ranch for the foxes purchased under this agreement for one breeding season from date to October 1st, 1926, for the sum of One hundred fifty dollars, guarantee to deliver as many pups to the purchaser as the average number of pups raised on their ranch this season.

"It is Mutually Agreed that time is the essence of this contract; that in event the purchaser fails to make the payments herein set forth, all monies will be forfeited as liquidated damages to the Portland Silver Fox Farms.

"It is Understood and Agreed that the ownership of the foxes mentioned in this agreement shall remain in the Portland Silver Fox Farms until the full purchase price is made.

"IT IS FURTHER SPECIFICALLY UNDERSTOOD AND AGREED that no statements or representations made relating to the Portland Silver Fox Farms other than those made in this contract shall be binding upon the Portland Silver Fox Farms, and no agreements or conditions not herein contained shall be binding upon either party hereto.

"IN WITNESS WHEREOF the parties hereunto have set their hands and seals the day and year first above written.

"PORTLAND SILVER FOX FARMS, "G.U. FLINT, "Representatives. "By F.E. BLEICH, "H.C. KLINGE, "Purchaser."

Defendant alleges that under the contract the plaintiff paid $1,600 to defendant, but has otherwise failed and refused to carry out the terms of the contract; that defendant complied with the terms of the contract on his part.

The trial court made the following findings of fact:

"That on August 29th, 1925, the defendant agreed to sell to the plaintiff one male and one female silver fox of the best silver fox breed and superior to any other silver foxes on the market, of good size and having over fifty per cent of silver, strong, healthy, prolific, tame, raised on his Portland Fox Farm, properly breed, feed and take care of the same with their offspring until October 1st, 1926, and then deliver such foxes, together with two registered and pedigreed pups of the same breed, kind, character and nature, for the sum of $2150.00, with a discount of $200.00 if $1600.00 were paid on or before September 6th, 1925, and the remainder of such purchase price to be paid on or before October 1st, 1926;

"That before said September 6th, 1925, the plaintiff paid to the defendant the sum of $1600.00 on account of said purchase price, breeding, feeding and care;

"That on said October 1st, 1926, the plaintiff demanded the delivery of such foxes and pups to him, and the defendant was unable to and refused to deliver the same, and upon such refusal, the plaintiff demanded of the defendant the repayment to him of the said $1600.00, which repayment the defendant refused and has not paid."

It is contended on behalf of defendant that the plaintiff had no right to rescind the contract and, in effect, that the written contract contained all of the stipulations of the parties.

Section 8167, Or. L., provides that the contract for the sale of goods may be made in writing; or by word of mouth; or partly in writing and partly by word of mouth. It will be noticed that the written contract is somewhat vague as to the description of the foxes to be delivered. The defendant agrees they will select the foxes "with a view to their fur qualities, size and prolificness of the strain from which they come, and shall so mate them that there will be no inbreeding." The purchaser agrees to accept the selection so made, provided the foxes come up to the standard specified in this agreement. No other standard is specified, except that they be registered and pedigreed silver foxes.

Section 8178, Or. L., subdivision (2), provides, "where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not) there is an implied warranty that the goods shall be of merchantable quality." Subdivision (6) reads: "An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith."

Section 8230, Or. L., provides the remedies for breach of warranty, and subdivision (1) provides where there is a breach of warranty by the seller, the buyer may, at his election: * * (d) "rescind the contract to sell or the sale and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price of (or) any part thereof which has been paid."

The testimony leads us to believe that the same warranted the trial court in finding that the defendant was unable to and refused to deliver the foxes as agreed; that those offered by the defendant for the plaintiff were sickly and had been improperly fed and were inferior in grade; that the fur contained only about 20 or 25 per cent silver when it should have contained about 50 per cent silver, and had "rust."

It appears that defendant had delivered several foxes from their farm that season and those remaining were what might be termed culls.

Defendant relies upon the last clause of the written contract to exclude any testimony in regard to the agreement other than expressed therein. The case of Hetrick v. Gerlinger MotorCo., 84 Or. 133, 138 (164 P. 379), was a suit to rescind a contract of sale on the ground of misrepresentation as to a motor truck sold by defendant to plaintiff. The memorandum of sale signed by plaintiff and the manager of the motor company contained the following clause: "It is understood by the parties hereto that there are no understandings or agreements, verbal or otherwise, other than those printed or written hereon."

It was held in an opinion by Mr. Justice McCAMANT that it was competent for plaintiffs to offer evidence of misrepresentation on the authority of Bouchet v. Oregon Motor Car Co., 78 Or. 230,236 (152 P. 888). In the latter case there was a written order or contract with a warranty given by the seller at the time of delivery of the automobile. Plaintiff was permitted, over objections of defendant, to testify as to the representations of defendant made at the time of the sale of the car. In an opinion by former Mr. Justice BEAN, we find this language at page 235:

"Under all the conditions, it was proper for the plaintiff to show by parol evidence the circumstances of the contract of sale, what representations the defendant made, what kind of an automobile was intended to be purchased, and that the defendant warranted the car"; citing many cases.

In the case at bar the language of the memorandum made by the parties squints at the kind of foxes agreed to be sold. The language is vague and ambiguous. Under the conditions of the case, fraud being alleged, and taking into consideration the provisions of our statute above quoted, we think it was competent for the plaintiff to show by oral testimony what quality of foxes defendant agreed to sell him, and that the seller at the time of delivery failed to furnish the kind as agreed. Plaintiff was entitled under the contract to receive good merchantable silver foxes.

The contract, shown above, mentions the price of the pair of foxes as $2,000 and $150 for keeping and caring for them until the time for delivery. Plaintiff paid $1,600 on the contract. It was agreed, if he paid that amount on or before September 6, 1925, a discount of $200 should be allowed by defendant. Defendant, in a letter written January 29, 1926, stated the amount due on the foxes, $200, besides the amount for keeping, thereby allowing the discount claimed by plaintiff. Nothing contained in the writing refers to such discount. This shows that both parties treated the contract as not containing all of the terms of the sale.

Defendant claims plaintiff should have elected to rescind at an earlier date when he heard that defendant did not have the kind of foxes on his farm. The defendant was entitled to take until October 1, 1926, to comply with the terms of the agreement. Plaintiff was then ready, able and willing to fulfill his part of the contract. He acted as promptly as he well could.

This case differs somewhat from a suit to rescind where the property has been sold and delivered. See 24 R.C.L., p. 18, § 279, p. 47, § 310.

We affirm the decree of the trial court.

AFFIRMED.

RAND, C.J., and McBRIDE and BELT, JJ., concur.