Rosenau v. Lansing

On Petition eor Rehearing.

(234 Rae. 270.)

BROWN, J.

For a full statement of the facts in this case, and a copy of the contract for the sale and delivery of nursery stock, see Rosenau v. Lansing (Or.), 232 Pac. 648 .

A familiar rule of law is stated thus:

“The cardinal principle in the construction of all contracts, including contracts of sale, is to ascertain the intention of the parties, and give effect thereto, if it can be collected from the instrument and the circumstances without the violation of some settled legal principle. So the courts in the construction of contracts of sale for the purpose of arriving at the intention of the parties may look to the language employed, the subject matter, and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and, in that view, they are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of *648 the meaning of the words and of the correct application of the language to the things described.” 23 R. C. L., § 147, Sales. See, also, Or. L., §§ 715-717.

This case involves the construction of an agreement for the sale and delivery of nursery stock to be planted on plaintiff’s farm near Sheridan, Oregon. The City of Sheridan was incorporated by the Legislative Assembly of the State of Oregon, and the court will take judicial notice of its boundaries: Or. L., § 729. Under the terms of the contract, the nurseryman kgreed to deliver to plaintiff, in the fall of the year, 1,200 prune trees, in good condition. In order to meet the conditions set forth in the contract, it was essential that the trees, when delivered, be sound, healthy, vigorous, and in fit condition, when properly transplanted, to germinate and grow: Kitchin v. Oregon Nursery Co., 65 Or. 20 ( 130 Pac. 408, 1133 , 132 Pac. 956 ); Kelly v. Lum, 75 Wash. 135 ( 134 Pac. 819 , 49 L. R. A. (N. S.) 1151, and note).

It must he borne in mind that the agreement under consideration involves the sale and delivery of prune trees intended, and fit for the purpose of planting. It has been decided that where a contract relates to the sale and delivery of perishable articles, such as nursery stock, in the “fall,” the vendor is required to make delivery in that part of the fall suitable for transplanting: 23 R. C. L., § 191, Sales.

This contract is in writing and should be construed as a whole, giving effect to every part thereof. It provides, among other things:

“That the entire contract is written and printed herein. ’ ’

It is “written and printed” in the contract that the plaintiff agrees “to come or send for the goods purchased herein on the day set for delivery, at which *649 time said goods are to be in good order.” The seller promised to set the day for delivery at Sheridan. It is written in the contract that the nursery stock is “to be delivered at the Town of Sheridan, in the fall of 1919, in good condition.” The particular place in Sheridan for delivery is not named. Both the time and place for delivery in Sheridan were to be fixed by the seller. Under the provisions of the writing, the seller could have set a day for delivery of the trees at Sheridan as early in the “fall” of the year specified in the writing as delivery could have been made without injury to the health, thrift, and vigor of the young prune trees, and not earlier. He could likewise have delivered the perishable prune trees as late in the fall as he chose, provided delivery and receipt thereof might have been had without injury to them. The early days of September may, or may not, have been a suitable time for delivering the trees.- Again, the last day of November may, or may not, have been a fit time to deliver fruit trees intended for transplanting: Weltner v. Riggs, 3 W. Va. 445 . The period of time for delivery named in the contract embraced the entire “fall” of that year. But the contract also required that the trees be delivered in “good condition.” These provisions should be read together. It was for the mutual benefit of the parties to the contract that the seller was impliedly named to fix the time for delivery. Young trees are tender. Climatic conditions affect them. From the defendant’s pleadings we learn that winter began with unusually cold weather. He says the trees were frozen; but the date on which he alleges that they were frozen was subsequent to the time designated in the contract for delivery.

*650 In the preparation of the original opinion we had, and now have, in mi,nd a general rule in the law of sales relating to the time of delivery, which is stated as fellows:

“If the seller is given the option of delivering the goods at any time within a stated period he must, to bind the buyer, give notice of his election to deliver before the last day of the period or such last day will be the day of delivery, in which case no notice is necessary.” 35 Cyc. 182, 183.

But, in the cause at issue, the subject matter of the contract is the sale and delivery of trees of tender growth and age, and the nurseryman contracted to give notice to the vendee.

“The parties of course could have made a contract requiring the giving of a notice at all events.” Livesley v. Strauss, 104 Or. 356 ( 206 Pac. 850 , 207 Pac. 1095 ).

This contract plainly provides that the vendee was to “come or send for the goods purchased herein on the day set for delivery” by the seller of the nursery stock. It further provides that on the day the trees were to be delivered at Sheridan they “are to be in good order,” but after that date the vendees must assume the responsibility as to the condition thereof. The perishable nature of the young trees runs through the contract.

Considering the situation of the parties at the time of the execution of the contract: The plaintiff was a responsible farmer, residing near the City of Sheridan, Oregon. The defendant was a nurseryman engaged in growing fruit trees near Salem, Oregon, about thirty miles distant from Sheridan. The nurseryman was represented by an agent who was soliciting orders. The agent called upon the farmer, who was desirous of planting a prune orchard. The *651 farmer was eager to buy prune trees. Tbe nurseryman was equally eager to sell. The farmer agreed to purchase 1,200 prune trees. The agent produced a form of nursery contract provided by the defendant. The form was filled out by the agent and signed by the farmer. The contract is silent as to the manner in which the nurseryman would transport the fruit-trees to Sheridan. He had the right to send them by express and notify the purchaser to come to the express office in Sheridan and get the trees. Also, he had,the right under the contract to send the trees by freight and notify the plaintiff where to come. Or, he could have delivered them by motor-truck and required Rosenau to meet him at any specified place in the City of Sheridan for the purpose of receiving them. See the instructive opinion by Mr. Justice Burnett in Harrison v. Beals (Or.), 222 Pac. 728 , involving place of payment. The defendant failed to give any notice, and neglected to ship the trees from Salem to Sheridan.

The case of Bonewell et al. v. Jacobson, 130 Iowa, 170 ( 106 N. W. 614 , 5 L. R. A. (N. S.) 436), is much in point. In that case, Mr. Chief Justice McClain, in rendering the opinion of the court, said:

“It was expressly stipulated that the trees were ‘to be delivered by said B. F. Bonewell & Company in good order at Story City in the spring of 1902 on a day to be fixed by said B. P. Bonewell & Company by notice given to said party of the second part’; and it was further recited that ‘the party of the second part agrees to receive said goods on the day and at the place named above, and to pay for the same at Des Moines, Iowa, upon such delivery.’ There was no evidence, so far as the record shows, that defendant ever received notice of the time and place where plaintiffs proposed to deliver the trees, *652 nor that plaintiffs ever attempted to make any sneh delivery. ’ ’

The court held that in view of the circumstances there could he no recovery of the purchase price of the trees under that contract.

During the period of time covered by the record in this cause the price of prune trees advanced greatly. The testimony discloses a buyer who was at all times ready, able, willing, and eager to perform his contract. Upon the other hand, it evidences a nurseryman who entered into a contract for the sale and delivery of fruit trees but failed to perform its conditions.

The petition for rehearing is denied.

Rehearing Denied.

McBride, C. J., and Bean and Coshow, JJ., concur.