Cram v. Tippery

155 P.2d 558, 175 Or. 575, 1945 Ore. LEXIS 96

• Court: Oregon Supreme Court
• Decided: October 30, 1944
• Status: Published

Opinions

Action by Ira Cram against L.H. Tippery and another for breach of contract, wherein the named defendant filed a counterclaim. From an adverse judgment, the plaintiff appeals. The plaintiff has appealed from an adverse judgment in an action to recover damages for breach of contract. He alleged in his amended complaint that he purchased from the defendants seventy tons of hay at $16.00 a ton, and made a down payment of $500.00; that the defendants delivered to him thirty tons of hay, but refused to deliver the remaining forty tons, and that he was obliged to buy forty tons of hay at the market price of $25.00 and was thereby damaged in the sum of $360.00.

The defendant McCoy filed no answer or other pleading to the amended complaint. The defendant Tippery, by his answer, denied the sale as alleged by the plaintiff, and alleged in substance that the defendant McCoy was his agent in the transaction referred to, but that McCoy was only authorized to sell one stack of hay, and that the agreement between the plaintiff and the defendant Tippery, made through McCoy, was for the sale of one stack of hay without any understanding between them as to the tonnage in the stack. The defendant Tippery further alleged by way of counter-claim:

"That it was understood and agreed between plaintiff and defendant, Tippery, that said plaintiff was to pay sixteen dollars a ton for the hay. That the plaintiff has heretofore paid the defendant, Tippery, the sum of $500.00, which, in accordance with the understanding and agreement of the plaintiff and defendant, L.H. Tippery, was full payment for thirty-one and one-quarter tons of hay. That actually, the plaintiff received from the defendant, Tippery, hay in excess of thirty-five tons. That the plaintiff received, in excess of the hay paid for, three and three-quarters tons of hay, and is owing the defendant, L.H. Tippery, for said three and three-quarter tons of hay, the sum of sixty dollars, and that the defendant, L.H. Tippery, has demanded of the plaintiff, that said sum be paid, but that plaintiff has refused to pay the same."

Judgment for $60.00 was prayed for accordingly.

The trial was before the court without a jury. The court entered findings of fact in which it found that McCoy "was given limited authority to sell one stack of alfalfa hay, the same being the second crop or cutting and no more", and that McCoy signed "what purported to be a Bill of Sale transferring unto plaintiff alfalfa hay in the amount of 70 tons"; that the defendant Tippery, upon learning that McCoy had signed such bill of sale, refused to deliver any hay other than that contained in the stack which he authorized to be sold; that the amount of hay received by plaintiff from defendant Tippery was 32.7285 tons. The court further found that the defendant Tippery abandoned and offered no proof in support of his counter-claim. As conclusions of law the court found that McCoy exceeded his authority in signing the bill of sale for seventy tons of hay; that the defendant Tippery refused to recognize his act in so doing and "did not ratify said sale and transaction and is not bound by such contract"; and that the further and separate answer and defense of the defendant Tippery does not "estop him from asserting the limitation and restriction upon the authority to sell but one stack of hay."

Judgment accordingly was awarded the defendant Tippery for his costs and disbursements.