Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-07

OhAAL OAIlIAu
where it would be expected to make
such delivery on October 18th, 1908,
plaintiff notified defendants 1t had
100000 pounds of hops ready for de-
livery, and requested to know the
place defendants. desired same to be
delivered, to which notice defendants
replied by letter, refusing to desig-
nate either place or point of deliv-
cry; stating that they did not regard
the contract as in force, and declin-
ing to recognize the same in any
way. Plaintiff further alleges that it
duly complied with and performed all
the conditions of the contract, on its
part to be kept and performed, and
that it was on the 18th of October,
1908, and prior thereto, ready and
willing to deliver 100000 pounds of
prime Oregon hops, grown in 1908
on the premises described in the con-
tract, to defendants at either of the
places mentioned, and had defendants
named such place of delivery and at
tended thereat to receive the hops,
would have rendered and delivered
same. But because of the wrongful
conduct of the defendants, plaintiff
was unable either to deliver or ten
der delivery of said hops. That de-
fendant wrongfully failed, neglected
and refused to receive said hops,
and to pay plaintiff therefor, accord
ing to the terms of said contract, or
at ALL and that upon said date hops
of the kind and quality described in
said contract were worth in the mar
ket, at the time and place of delivery
seven cents per pound and no more.
The defendants by their answer
put in issue all the allegations of the
complaint except the incorporation
Of plaintiff, the partnership of de-
PENDANTS, the execution of the con-
tract, and the market value of the
hops on October 18th, 1908, in addi-
tion thereto setting up seven affirma-
tive defenses as follows:
1. In bar the sale of the hop yard
to Ladd & Bush, and the assignment
of the payments to accrue thereon;
that thereby the PLAINTIFF made de-
fault in the contract, for which de-
fault the defendants on the oath day
of March, 1906, rescinded the con-
tract.
O. In estoppel that plaintiff, after
the execution of the contract, con-
veyed the hop yard and assigned the
contract without the knowledge Of
defendants, and abandoned and re-
tired from the contract, and that by
reason thereof defendants them
selves retired from and rescinded the
contract.
8. Plaintiffs breach of the contract
in the year 1906, in not delivering or
offering to deliver any hops during
that year
4, In estoppel, all the matters set
forth in the second and third de-
fenses.
5. Plaintiffs claim that hops were
worth but cents per pound should
not be heard, because defendants Of
fered to pay cents per pound there
for, for which plaintiff refused to
SELL
6. The recovery of the judgment
on the contract of August 25 1904,
in the action brought by plaintiff
against defendants in January, 1908.
Z. Defendants pleaded in estoppel
Judgment in the action, commenced in
January, 1908. Krebs Hop Co. v.
Livesley, 1O4 Pac., 8.
Trial was had, resulting in judg-
ment in favor of plaintiff for $1,000,
from which defendants appeal.
Bean, j.: A brief history of the
cases pertaining to this contract is as
follows: The contract having been
fully performed in 1905, in 1906, be-
fore the time for delivery arrived,
plaintiff brought an action and re-
covered judgment for $4,000, for the
April and May payments of that year.
(Krebs Hop Co. V. Livesley & Co., 81
Or, 527) Thereafter, no hops of
the crop of 1906 having been deliv-
cred to defendants they brought suit
against plaintiff for an accounting,
and to offset and stay the enforce
ment of the judgment for $4,000, re-
sulting in a decree in favor of Krebs
Hop Co. On appeal to this court,
Justice Slater, having been of coun-