Opinion
Argued June 10, 1932
Affirmed September 14, 1932
Appeal from Circuit Court, Multnomah County, GALE S. HILL, Judge.
W.C. Winslow, of Salem, for appellant.
Earl F. Bernard, of Portland (George R. Wilburn and Collier, Collier Bernard, of Portland, on the brief), for respondent.
Action by F.T. Glaser against Dale M. Haskin. From a judgment for defendant, plaintiff appeals.
AFFIRMED.
This is an action to recover damages for the breach of an alleged contract to deliver the transfer of registration papers on a pair of registered foxes which, with others, had been sold by the defendant to the plaintiff for breeding purposes.
On September 26, 1924, the plaintiff and defendant entered into a contract for the sale by defendant and the purchase by plaintiff of five and one-half pair of registered foxes for the sum of $6,750.00, which sum the plaintiff then paid to defendant in cash and promissory notes. When the time for delivery and settlement arrived a controversy arose between the parties, and as a result thereof the plaintiff brought an action against the defendant in the Circuit Court of Hood River county. The parties met at Jefferson, Marion county, the home of the plaintiff, and settled their differences by entering into the following written contract:
"Jefferson, Oregon, Jan. 22, 1926.
"To adjust arguments and settle complaint (F.T. Glaser of Jefferson vs. Dale M. Haskin of Hood River), D.M. Haskin guarantees to F.T. Glaser that original five pair will produce ten pups, or, if they don't Haskin will make up balance which will pass inspection during the spring of 1926, which will register.
"Haskin agrees to guarantee the original five pair and their increase for the years 1926, 1927, 1928, not to go Sampson.
"Haskin agrees to make good young female from pen 34, tattoo No. 00 right 1 z left, and young big male tattoo No. ____ which is to be mated with same if either or both go Sampson.
"Haskin agrees to replace pair given in place of one-half interest in pair whose tattoo No. is ____ and bad male which did not register tattoo No.
"Haskin agrees to not charge any interest or ranching charges on said foxes and agrees to take new note for balance due on said foxes payable on or before Dec. 1, 1926, without interest.
"Accepted and signed by:
"Dale M. Haskin. "Witness Mary Glaser. "F.T. Glaser."
The plaintiff alleged that the foregoing constituted a full and complete settlement; that the foxes were delivered pursuant to this settlement, and that it was the intention of the parties that title to the foxes should likewise pass to the plaintiff and that all registration papers should be delivered to him, but that the defendant refused to deliver the transfer of the registration papers upon that certain female fox known as "Roger's Lola," and her mate, the same being two of the foxes purchased by the plaintiff, with the result that, although registered in the American National Fox Breeders' Association, these foxes were of no value to plaintiff for breeding purposes, for the reason that the increase therefrom could not be registered in the name of any person other than the owner of the dam as shown by the records of the Breeders' Association. He alleged that it was the general custom prevailing among growers, breeders and dealers in registered foxes to transfer along with the foxes registration papers duly assigned to the purchaser thereof. He alleged that there were produced from the above-mentioned Roger's Lola, six pups, of the reasonable value of $3,000.00 provided registration papers could be produced therefor; but that, although all of these pups would have passed inspection and were entitled to be registered, they could not be registered in the name of the plaintiff or in the name of any person other than the defendant, and, if registered in the name of the defendant, transfer thereof could not have been made by plaintiff for breeding purposes; that, by reason of these facts, the six pups mentioned were of no value whatsoever for breeding purposes, and plaintiff alleged that, for pelting purposes, they were worth not to exceed $500.00. He alleged that he had demanded that defendant transfer to him the registration papers on the fox known as Lola in order that he might register the pups in his name, but that defendant had refused so to transfer such papers, and that as a result plaintiff had been damaged in the sum of $2,500.00. Plaintiff demanded judgment for $2,500.00 and costs.
The defendant, answering, alleged that the sale of the pair of registered foxes involved herein was made to plaintiff for breeding purposes pursuant to a written contract between the parties of date September 26, 1924, which had at all times remained in full force and effect; that, at the time of the filing of the action by plaintiff, the notes referred to in the contract had not all been paid, but that the sum of $2,482.00 was due on October 1, 1925, as evidenced by one of such notes. He admitted that, on January 22, 1926, he executed the agreement hereinbefore set out, which agreement he alleged was made to settle a controversy over the particular foxes to be delivered under the original contract. He alleged that at the time of the commencement of this action he had not delivered to plaintiff the registration papers on the foxes involved for the reason that, under his agreement with the plaintiff, he was not required to deliver such papers until all notes given by the plaintiff in part settlement had been fully paid in cash. He further alleged that he at all times had been ready, able and willing to deliver the named papers to the plaintiff upon the compliance by the plaintiff with the terms of the original contract. The contract reads:
"Standard Sales Contract
"This agreement, hereby entered into by Dale M. Haskin and F.T. Glaser, Town, Albany, State of Oregon, WITNESSETH:
"That, in consideration of the payment of the sum of $6,750.00, Dale M. Haskin agrees to sell five and one-half pair Standard Bred, Registered Quality Silver Foxes (Prince Edward Island Strains) under the following terms and conditions:
"First. Receipt is hereby acknowledged of cash in the amount of $1,000.00,
and one note 1,400.00 750.00 ________ 2,150.00
and notes in the amount of $ ____ to be paid $1,000.00 on or before ____, $2,482.00 due on or before Oct. 1, 1925.
"At the rate of ____; such settlements being made payable to Dale M. Haskin, and not to any other individual.
"Second (Ranching Clause). It is agreed that Dale M. Haskin will ranch (care for and feed) the foxes purchased hereunder in consideration of the payment of the sum of $250.00 to June 1, 1925, $6.25 per pup and fox per month from June 1st — but no ranching charge till June 1, 1925, if not fifteen pups — 1925, such sum being payable monthly; but that Dale M. Haskin will not be liable for the loss of the mentioned foxes in any way whatsoever unless insured as mentioned in section No. Three as below.
* * * * *
"Fourth. It is agreed that the foxes purchased hereunder will be delivered on or about October first, 1924, in good health, at Dundee, Oregon, if all moneys due hereunder are fully paid in cash. It is expressly stipulated and agreed that title of ownership shall be vested in and remain with Dale M. Haskin until any note or notes given in part settlement hereunder shall have been fully paid in cash.
* * * * *
"Sixth. It is specifically agreed that all puppies whelped by the foxes purchased hereunder shall belong to the said purchaser, but the life and health of the said puppies is not guaranteed by Dale M. Haskin except as is provided in Section No. Five above.
"Glaser agrees to accept a pup in 1925 for his one-half int. or will buy or sell said interest.
"In witness whereof, we have this 26th day of Sept., 1924, hereunto set our names and seals.
"Dale M. Haskin, By (signed) D.M. Haskin, Agent. By (signed) F.T. Glaser, Purchaser."
Accepted Sept. 26, 1924 Dale M. Haskin By (signed) D.M. Haskin.
The plaintiff admitted the execution of the promissory note for $2,482.00 referred to in defendant's answer, but alleged that it had been fully paid and extinguished by virtue of a judgment theretofore obtained by plaintiff against the defendant.
At the conclusion of the evidence upon the part of the plaintiff, the defendant moved for a judgment of involuntary nonsuit, which was allowed. From this judgment, the plaintiff has appealed.
From the number of lawsuits these litigants have carried on as shown by the records of this court, it is evident to the mind of the writer that one of them, at least, delights in litigation. In the instant case, after calling upon the courts to establish the contentions of each against the other, they withdrew from their capable lawyers and betook themselves to Jefferson, and there, at the home of the plaintiff, they made and executed a subsequent contract that, in form and substance, seems to be an offspring from that storehouse of knowledge entitled, "Every Man his own Lawyer." The plaintiff now declares that the subsequent contract was intended as a voluntary discharge of the former, while, on the other hand, the defendant contends that much of the original contract is still in effect, and that he at no time contemplated, or consented to, the abrogation of that contract.
In its application to contract law, the term "discharge" implies that, by reason of certain acts which have taken place after the contract was made, a contract which was once a valid and enforceable agreement has ceased to be enforceable: 4 Page on the Law of Contracts, § 2446. Section 2457 teaches that an executory contract may be discharged by a new contract which is entered into for that purpose between the parties to the original contract. At section 2458 the author of this work sets forth the prerequisites to a modification or recission of such a contract and the enforcement of the new or subsequent contract in the following language:
"The proposition that a prior contract may be modified or rescinded by a subsequent contract implies that such subsequent contract must have the elements necessary to the formation of a valid original contract. The new contract requires the assent of all the parties to the original contract or of their successors in interest to operate as a discharge thereof. One of the parties to a contract can not modify such contract or terminate it lawfully unless the other party assents thereto. * * *
"To abrogate or modify a prior contract, it is necessary that the minds of the parties to the original contract should meet by offer and acceptance upon the terms of the new contract."
With relation to subsequent inconsistent agreements, the editors of Corpus Juris have written:
"One written contract complete in itself will be conclusively presumed to supersede another one made prior thereto in relation to the same subject matter. * * * Where it is claimed that, by reason of inconsistency between the terms of the new agreement and those of the old the old one is discharged, the fact that such was the intention of the parties must clearly appear. Where the contracts may stand together a subsequent will not supersede a prior one. A new contract with reference to the subject matter of a former one does not supersede the former and destroy its obligations, except in so far as the new one is inconsistent therewith, when it is evident from an inspection of the contracts and from an examination of the circumstances that the parties did not intend the new contract to supersede the old, but intended it as supplementary thereto." 13 C.J., pp. 603, 604.
In his excellent work on "Contracts," Mr. Elliott, after stating that a contract may be discharged or modified by a subsequent one inconsistent with the original contract so that they cannot subsist together "even though there is no express agreement that the new contract shall have that effect," continues thus:
"But much depends upon the nature and extent of the inconsistency and the scope and proper construction of the particular contract, and the new contract may supersede or modify the old only in part. It may not be as broad in its scope as the old, and may cover or relate to only a particular provision or part of the subject matter. In such case it would not, ordinarily at least, abrogate and supersede the old contract in toto, but only in regard to the particular provision or subject to which it refers and as to which the inconsistency exists." 3 Elliott on Contracts, § 1865.
The decisions of our court are in harmony with the teachings of the foregoing textwriters. In Boyes v. Ramsden, 34 Or. 253 ( 55 P. 538), it was held that "an agreement to modify a prior agreement must be established by clear and satisfactory evidence." See, also, Watson v. Janion, 6 Or. 137.
The purpose of the second agreement between the parties hereto appears to have been merely to settle a controversy which had arisen between them concerning the identity of the foxes which the plaintiff had purchased from the defendant. The complaint avers, among other things:
"That at the time of turning said foxes over to plaintiff herein, a controversy arose between plaintiff and defendant over the foxes to be delivered * * *; that thereafter, and on the 22d day of January, 1926, said controversy between plaintiff and defendant was settled, and by the terms of said settlement it was mutually understood and agreed by and between plaintiff and defendant that plaintiff herein would accept certain foxes delivered to him at Jefferson, Marion County, Oregon, in compliance with said original contract, and said foxes were so delivered * * *; which said agreement of settlement was in writing and was in words and figures as follows: * * *."
This last-mentioned agreement contains no words which even suggest the repeal or obliteration of the following provision of the original contract:
"It is expressly stipulated and agreed that title of ownership shall be vested in and remain with Dale M. Haskin until any note or notes given in part settlement hereunder shall have been fully paid in cash."
It seems to the writer that the language of this provision is plain, clear and concise, and easily understood, and that, by virtue thereof, the defendant had the right to refuse to deliver title to the fox involved until the promissory note hereinbefore described was paid. The record fails to show that this note has ever been paid. Smith v. Mills, 112 Or. 496 ( 230 P. 350). There being nothing in the subsequent contract which in any way modifies or alters the provision just set out, we believe that the original contract entered into by the parties hereto is still effective. It follows that the plaintiff's action must fail.
The judgment entered by the lower court will be affirmed.
BEAN, C.J., BELT and ROSSMAN, JJ., concur.