Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-14
OREGON SUPREME COURT DECISIONS
Pull Text Published Courtesy F. A. Turner Reporter the
Supreme Court
Krebs '. LlresIey, Marion County.

pidlullllt V. i. a. llNeSley and JONI
j. Roberts, partners doing business
under the firm name and style of T
A. Llyesley & company, appellants
Appeal from the circuit court for Mar
ion county. Hon George Fl. Burnett
Judge. On petition for rehearlng. AT
flrmed April 4, 1911. (See ia Pac
944D Carson & Brown, for respon
dent. Writ Minor and VIM. NJ. Kaiser
for appellants. Bean, j. Former opin.
ion adhered to.
Bean, j. Defendants petition fol-
rehearing upon the point involving
the measure Of damages. For a state,
ment and former opinion of the case
see ia Pacific, 944.
Prior to the last date for the deliy-
cry or 100000 pounds Of hops for the
year 1908, according to the terms OF
the contract, plaintiff sent the follow
Ing letter to defendants:
Salem, Oregon, Oct. g. 1908.
"Messrs. r. A. Livesley & Co.,
Salem, Oregon.
Dear Sirs: Our contract with you,
dated 25th August, 1904, for the sale
OF one hundred thousand pounds of
hops OF the growth of the years 1905
to 1909, inclusive, provides, as you are
aware, that we shall deliver the hons
not later than October 18th, {. O. h
ears independence or t. o. b. boat at
Murphy's Landing. In 1905 we deliy-
cred the hops on board boat at Muir
phys landing at your request. The
contract does not state whether we or
you have the option of delivering on
board cars or on board boat, but in
any event we are willing to deliver
the hops this year wherever you may
designate Kindly, therefore, let us
know at once by return mail whether
you desire the hops delivered on board
cars at Independence or on board boat
at Murphy's Landing, so that we NAV
provide the cars or boat for delivery
as you may desire We have this year
one hundred thousand pounds OF hops
of the kind and quality described in
the contract, and we hope you will be
pleased with the same.
inviting your immediate response
we are, yours truly,
80, "Krebs Hop Co.,
By Leonard Krebs, Vice President
On the last date stipulated for the
delivery of the hops for that wear
defendants replied to the above letter
as follows:
an. "Oct. 18th, 1908.
'krebs Hop Co.. Salem, Oregon.
gentlemen; We have received your
registered letter of the 9Th inst You
are aware that we do not regard this
contract as In force. You also know
that we do not think 1t Is our business
TO say whether you should deliver the
nops' II the contract were in force, at
Mnrphys Landing or at Indepen-
dence' We decline to recognize the
contract in any way.
We are In the market, however IN
Duy hops, and to pay the market price
Tor such hops as we wish. We have
no objection to buying your hops in
1ependently of any contract. II Won
nave 100000 pounds of hops of the
growth of 1908, and the same ara
prime Oregon hops, and II you wish
TO sell them to us subject to our in
spectlon, We are willing to buy this
OF hops of said quality from
you, and Will pay you for the same
l. o. D. cars Mt Independence, Oregon.
elght cents per pound, provided Won
VIII deliver the same not later t6on
the 25th day of October 1908. and if
you accept this offer, give us notice
&C once on what day you will have
Ihe same ready for inspection.
Yours truly,
"T. A, Livesley & Co"
IL was admitted by defendants In
me pleadings that on the 18TH dav of
October, 1908, hops of the kind and
quality described in the contract were
worth In the market at the time and
place of delivery the sum of seven
cents per pound and no more, and
upon the trial the difference between
ms price and the contract price. II
damages.
defendants In their answer pleaded
nat by reason OF the defendants offer
lnd tender Of eight cents per pound
.or the amount, kind and quality of
lops described in the contract of sale.
was estopped from saying the
market price OF such hops was hut
seven cents per pound, and TO sub- |
'tantate such plea, upon the trial |
lllered in evidence the letter referred
o OF October 18th, 1908, which was |
rejected, Defendants contend that
lnder the rule, where two parties
laNe made contract which one of
hem has broken, the other must make
'easonable eNertion to render his in
ury as light as possible. and he can
lot recover from the party breaking
ne contract damages which would |
lave been avoided had he performed
lis duty Getting Ehlig V. Barnum.
IS Neb. 5S4, 595) that the plaintiff
vas in duty bound 70 accept the offer
II defendants at his peril; in other
'ords that the measure of plaintiffs
Iamages Is the difference between the
ontract price of the hops and the
rice offered by defendants, which
would make difference of 81 900 90
n the Judgment
On the part of plaintiff il Is main
aimed that the true rule Of damages
'as applied; that the letter offered
4 evidence contained number of
onditions, and was an offer by de-
endants TO negotiate or make new
Ontract, and was not competent eyl.
ence OF value or the market price
Citing llSuth, on Dam, ed, sec
80, and It was not the duty of plain
II to accept such offer.
With the principle enunciated In