Opinion
Argued February 17, 1928
Affirmed March 6, 1928
From Benton: G.F. SKIPWORTH, Judge.
AFFIRMED.
For appellants there was a brief over the name of Messrs. Weatherford Wyatt, with an oral argument by Mr. Mark V. Weatherford.
For respondent there was a brief over the name of Messrs. Hill, Marks McMahan, with on oral argument by Mr. Gale S. Hill.
Plaintiff commenced this action to recover upon an express contract for the sale and delivery of certain lumber by its assignor, the Evergreen Lumber Company, to the defendants. There is no dispute as to the price or the amount of the lumber delivered. The controversy hinges upon the question: What was the contract of sale? Did the Evergreen Lumber Company contract to sell and deliver to defendants No. 1 common lumber, or did it agree to sell and deliver lumber to conform to certain specifications of the United States Bureau of Public Roads? Defendants Gates and Solberg were copartners engaged in the construction, under government supervision, of the Alsea Highway. Their contract required, among other things, the construction of three bridges. It is defendants' contention, so far as material to a consideration of the questions here involved, that the lumber delivered was not suitable for bridge purposes and was not of the kind and quality ordered. It was rejected by the government. The cause was submitted to a jury and a verdict returned for the plaintiff. From the judgment entered thereon, defendants appeal.
Defendants complain of the refusal to give their requested instruction as to the essential elements of a contract. Relative to the question of contract, the court advised the jury as follows:
"If you find from the evidence in the case that the Evergreen Lumber Company sold and delivered to the defendants number one common lumber, and if the defendants purchased from the Evergreen Lumber Company number one common lumber, then that would end the lawsuit, and your verdict should be for the plaintiff."
"If you find from the evidence in the case that the contract to purchase was that the lumber in question was to be according to specifications of the bureau of public roads, and if you further find from the evidence that said lumber did not come up to the specifications required by the said bureau, then I instruct you that the plaintiff would not be entitled to recover and your verdict should be for the defendants."
What could be more clear, definite and concise than the above instructions? Yet defendants say that the jury should have been instructed as to the essential elements of a contract. In our opinion to have done so would have tended more towards confusion than enlightenment. The issue was, indeed, a very simple one. We think the jury understood what it means to make a sale and delivery of lumber.
Appellants rely upon Archambeau v. Edmundson, 87 Or. 476 ( 171 P. 186), but we are unable to see wherein that case is controlling. There the execution and delivery of a written instrument was involved. The trial court, on its own initiative, set aside the judgment and granted a new trial for failure definitely to advise the jury as to what constituted a delivery. There might be confusion in a juror's mind as to whether a deed or a contract had been delivered, within the meaning of the law, but it is not believed that there could be any uncertainty in this case about the delivery of this lumber. In fact, defendants, in their answer allege that "the whole thereof had been delivered at the places mentioned for the construction of said bridges," but aver that it did not comply with their contract of purchase. We see no merit in this assignment.
It is urged that error was committed in rejecting the plans and specifications of the Bureau of Public Roads which were offered in evidence. At the time this offer was made it appeared without contradiction that the inspector for the government had rejected the lumber for the reason that it did not conform to the specifications above mentioned. He classified it as No. 1 common lumber. We fail to see wherein the rejection of these specifications could, in any way, have affected the verdict of the jury. The Evergreen Lumber Company had contractual relations with the defendants, but not with the Bureau of Public Roads.
The verdict of the jury on the question: "What was the contract?" is conclusive.
Finding no error in the record, the judgment of the lower court is affirmed. AFFIRMED.
RAND, C.J., and BEAN and BROWN, JJ., concur.