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contract for the purpose of being passed as to at Baker City in pursuance of the written quality, but that plaintiff, without cause, fail- contract; that defendant had at the time ed, neglected, and refused to pass such cattle and place stated a band of 578 head of cattle or any part thereof, except 222 head, where- which he offered to Hanley for the purpose of upon defendant elected to rescind the contract laving him pass upon the quality; that and thereafter sold and disposed of the cattle after Ilanley looked the band over he selectto other parties. The reply put in issue the ed therefrom some 200 or 250 head as comnew matter alleged in the answer. After the plying with the contract and such as he commencement of the action a writ of attach

would be willing to accept when delivered, ment was sued out by the plaintiff and cer- but the defendant, being dissatisfied with the tain personal property seized by virtue there

manner in which Hanley, was cutting the of, but on motion of the defendant the attach- cattle, notified him that he would refuse to ment was dissolved. A trial was thereafter be further bound by the contract, and subhad and a verdict rendered in favor of the sequently sold the cattle to other parties, defendant. From the judgment entered on and never delivered or offered to deliver to such verdict plaintiff appeals, complaining plaintiff any cattle whatever under the conthat the court erred in dissolving the attach- tract in question. There is much testimony ment, in the giving of certain instructions in the record as to what was said and done to the jury, and in the admission of evidence. by the respective parties at the time the W. F. Butcher and M. D. Clifford, for ap

cattle were offered by defendant to plaintiff pellant. W. W. Wood, for respondent.

for the purpose of having them passed as to

whether they were of the kind and quality BEAN, C. J. (after stating the facts). The called for by the contract, but this testimony argument in support of the motion to dissolve is unimportant on this appeal. The question the attachment is that the complaint does not for trial was whether Ilanley's acts and state facts sufficient to constitute a cause of conduct amounted to a repudiation or abanaction, because it does not allege that the donment of the contract, and the evidence in plaintiff was ready, willing, and able to per- question was important as bearing on that form the contract on its part, or that it ten- question, but its weight and value were for dered or offered to pay the balance of the the jury. Upon this point the court instructpurchase price. This is not an action for ed the jury that if they found from a prea breach of the contract between the plaintiff ponderance of the evidence “that at any and defendant. It is an action to recover stage of the passing upon the cattle in ques. back money paid by the plaintiff thereon as tion the plaintiff refused to pass and accept money had and received by the defendant a three or four year old steer, which was for its use, on the ground that the contract not in fact thin flesh or rough or Holstein has been wrongfully and unlawfully rescinded or Jersey blood, the defendant had the right and put an end to by the defendant. In such to refuse any other or greater number of an action the plaintiff is not required to allege cattle for plaintiff's inspection, and that it or prove an offer of performance on its

would amount to a repudiation of the agreepart, nor readiness to perform, whatever ment on the part of the plaintiff"; and might be the rule in an action to recover

also that if "the defendant had at any place damages for a breach of the contract. Main in Bear Valley at the time agreed upon v. King, 8 Barb. (N. Y.) 535; Monroe v. Rey- 600 head of cattle of the kind, age, and nolds & Upton, 47 Barb. (N. Y.) 574. If one quality required, and was ready, able, and of the parties to a contract wrongfully refuses willing to furnish them to the plaintiff to to comply therewith, the other party, if not be then and there passed and accepted by it, himself in fault, may elect to treat the con- and the plaintiff refused to pass and accept tract as rescinded and recover back the con- 278 head or any less number of such (attle, sideration, or whatever else has been paid that the plaintiff made breach of and rethereon. Bishop, Contracts, $ 834. And he is pudiated the agreement, and in that case it not obliged to allege or prove a tender or is not entitled to recover back any part of offer to perform the rescinded contract. An the money advanced by it upon the agreeaction to recover back the money paid on a ment." By these instructions the jury were contract which has been wrongfully rescinded told in effect that the refusal of Ilanley, the is in form assumpsit, and is on an implied plaintiff's manager, to pass and accept any contract within the meaning of the attach- one animal which, in their opinion, the eviment laws of this state. 2 Enc. Pl. & Pr. dence showed to be of the kind and quality 1016; S. C. y. Peat Fuel Co. v. Tuck, 53 specified in the contract, would be such a Cal. 304. The complaint therefore states a repudiation of the contract by the plaintiff cause of action, and the motion to dissolve as would defeat a recovery in this action; the attachment should have been denied. but this is not the law. The rule is unques

The record discloses that on August 20, tioned that a party who has advanced money 1905, the plaintiff's manager, William Han- in part performance of a contract, and then ley, and the defendant met by agreement in refusel to proceed to its ultimate conclusion, Bear Valley for the purpose of passing upon the other party being ready and willing to the quality of the cattle to be subsequently perform on his part, will not be permitted delivered by the defendant to the plaintiff to recover back what he has advanced.

Ketchum & Sweet v. Evertson, 13 Johns. (N. Y.) 359, 7 Am. Dec. 384; Hansbrough V. Peck, 5 Wall. (U. S.) 497, 18 L. Ed. 520; Gibbons v. Hayden (Kan. App.) 44 Pac. 445; Neis v. O'Brien, 12 Wash. 358, 41 Pac. 59, 50 Am. St. Rep. 891; Walter V. Reed, 34 Neb. 514, 52 N. W. 682. But it is not every breach that will amount to such a repudiation or authorize the other party to rescind the contract and retain what has been paid or advanced thereon. The nature of each case must be considered, and, as Mr. Bishop says, it is probably impossible to state a rule applicable to all the varying facts. After quoting from sonle of the de cisions, he says: “In general terms, the doctrine is that the breach, to justify a rescission, must be of a dependent covenant, or willful, or in a substantial part comprehending the root of the whole." Bishop, Contracts (En. Ed.) 8 828. And if the breach by a vendee be not of such a character as to amount to a repudiation of the contract or a refusal to proceed to its ultimate conclusion, and the seller, without a demand or offer to perform and without notice to the vendee, disposes of the subject of the contract, the latter may treat it as a wrongful rescission, and the law will give him a right of action to recover back the consideration paid in part performance. Monroe v. Reynolds, 47 Barb. (N. Y.) 574; Fancher v. Goodman, 29 Barb. (N. Y.) 315; Raymond v. Bearnard, 12 Johns. (N. Y.) 274, 7 Am. Dec. 371.

Now, in this case, the cattle which defendant agreed to sell and deliver to the plaintiff were to be passed as to quality in Bear Valley before being driven to Baker City for final delivery. It was the duty of the plaintiff to comply in good faith with this part of the contract, and if by words, or by their equivalent in acts, it refused to do so, the defendant could lawfully rescind. But before he could treat the contract as at an end, dispose of the property to other parties and keep the $3,300 advanced thereon by the plaintiff, it must appear that the plaintiff's words, acts, or conduct were willful or amounted to a repudiation or abandonment of the contract "in some substantial part, comprehending the whole." The mere refrsal to pass cattle which in fact complied with the contract, if done in good faith, would not of itself amount to such a repudiation, and would not justify the defendant in rescinding the contract, although it might repder plaintiff liable in damages for a breach thereof. The case turns upon the question whether the plaintiff abandoned or repudiated the contract, or, in other words, refused to proceed to its ultimate conclusion, and not whether its agent may have been mistaken in his judgment as to the quality of some of the cattle offered to him by the defendant for passing, or whether he may have been unnecessarily exacting in his

87 P.-10

requirements as to quality. The case shoula have been submitted to the jury upon this theory, leaving them to find from the entire testimony whether plaintiff's acts and conduct amounted in effect to an abandonment or repudiation of the contract or a refusal to comply with its terms. The instructions as given were erroneous because they did not conform to this principle. These instructions and others given by the court were also erroneous because they imposed the duty upon plaintiff, not only to pass the cattle as to quality in Bear Valley, but to accept them at that place, while the contract expressly provides that the cattle shali be delivered, accepted, and paid for at Baker City. They were to be passed as to quality only in Bear Valley, and no acceptance was contemplated until final delivery.

The defendant was permitted to prove on the trial, over plaintiff's objection and exception, that about the time the plaintiff's manager began inspecting the cattle in Bear Valley he made arrangements with one Brown to turn in on his contract with plaintiff 150 head belonging to Brown if necessary. This evidence was, we think, under the circumstances, incompetent. The plaintiff was not informed of the arrangement between defendant and Brown, nor was it advised that the Brown cattle were to be considered as a part of the number which the defendant agreed to sell to it, nor was any such cattle offered to it for passing as to quality. The arrangement was wholly between Brown and the defendant, and had no connection with the contract in question. Moreover, no objection was made by plaintiff to passing upon the cattle offered because the entire number was not tendered at the time, nor did it refuse to proceed with the contract on that account. It therefore cannot now claim that defendant did not comply with his contract because he did not offer for passing at the time the entire number of cattle which he agreed to deliver at Baker City.

Judgment reversed, and new trial ordered.



In an action for injuries to an employé sustained in running logs down a shoot for defendants, a complaint alleging that without the enforcement of regulations governing the manner in which the work was to be done the place at which plaintiff was working was extremely dangerous, and that defendant neglected to promulgate or enforce any rule or regulation for the safety of its employés, the want of which was the cause of the accident, and that defendant had an employé at the head of the shoot to start the logs and warn the employés below, but that shortly before the accident such employé had been removed and others directed to send the logs down without any system, after which plaintiff was injured, is *Rehearing denied December 11, 1906.

sufficient as charging negligence in not providing | plaintiff and his companions were putting suitable regulations governing the conduct of them back, preparatory to starting them on the work.

their journey, plaintiff heard Cameron, one (Ed. Note.--For cases in point, see vol. 31, Cent. Dig. Master and Servant, $8 816-825.]

of the teamsters, halloo at the top of the

mountain, and, looking up, saw a log com2. APPEAL · EXCESSIVE VERDICT - QUESTION OF FACT.

ing down the shoot very rapidly. He startThe refusal of the trial court to set aside ed to run to get out of its way, but was una verdict as excessive cannot be reviewed on able to do so. The log bounded out of the appeal, as it presents a question of fact, which

shoot and struck him, crushing his hip, disthe Supreme Court cannot examine.

locating his shoulder, and otherwise serious[Ed. Note.-For cases in point, see vol. 3, (ent. Dig. Appeal and Error, $ 3873.]

ly and permanently injuring him. He was

taken by friends to a hospital at Baker City, Appeal from Circuit Court, Union County ;

where he was confined for 260 days under Robert Bakin, Judge.

the care of a physician; his hospital and Action by G. II. Lindsay against the

physician's fees amounting to $1,400. At Grande Ronde Luniber Company. From a

the time of the accident he was 33 years judgment for plaintiff, defendant appeals.

of age, in perfect health, and of unusual Aflirmed.

vigor and healthful physique, but his shoulThis is an action to recover for an injury der is now stiff, and little use can be made of received by the plaintiff while in the employ his arm, and his leg is crooked, about four of the defendant, and alleged to have been inches short, badly shrunken, and its prop(aused by its negligence. The defendant is er use and strength permanently lost. On a corporation engaged in the lumber and account of his injuries and the suffering he logging business in Union county. At one underwent his general health is somewhat of its camps logs were shot from the top of impaired, and he is incurably and permanentil mountain to the Grande Ronde river, some ly mained and disabled. considerable distance below, through a trench The complaint, after setting out the facts ----commonly called a "ground shoot"-made substantially as stated, alleges that by reaby plowing a couple of furrows and dragging son of the grade of the shoot from the top a log through them. The course of this shoot of the mountain to the middle bench, and the is broken about 10 or 12 rods down the danger incident to the work of sending logs mountain side by a level place called the down it, it was necessary and indispensable "middle bench." Logs were hauled by teams "

for the safe conduct of the work and for the from where they were cut in the woods to safety of persons engaged therein to have the head of the shoot, and there started a sufficient number of competent men and clown toward the river, but, as the shoot appliances stationed at the top of the shoot was very steep to the middle bench, they de- to start the logs down in a systematic and scended so lipidly that many of them jump- | regular manner, and to see that no logs M or bounded from the shoot and stopped at were started without due notice and warnthat point. It was therefore necessary for ing to the men at work on the middle bench, (lefendant to have men and teams stationed and a sufficient length of time allowed to at the middle bench to put the logs back in- enable them to get to a place of safety ; to the shoot and start them on down to the that it was also indispensable to the safe river. The plaintiff had been employed at conduct of the work and the safety of its the logging camp for some time prior to employés for the defendant to promulgate the accident, but knew nothing of the man- and enforce rules and regulations for the per in which the work was conducted at government of its employés while engaged the shoot until about the day before, when in such work, and without such rules and he was put to work in the timber near by regulations and proper instructions as to and observed that four or five logs were a safe, prudent, and systematic manner of allowed to accumulate at the head of the doing the work the same became and was shoot, when a man named Kinney would needlessly hazardous and dangerous to perstart them down in lots of four or five at sons at work at the middle bench, who could a time, first giving warning to the men at not by ordinary care and precaution foresee work at the middle bench. About 8:30 or avoid such dangers; that the ground shoot o'clock on the morning of February 16, 1903, was insufficient in depth and width to conplaintiff was put to work at the middle bench duct the logs safely down the same, and to assist in sending the logs on down, without by reason thereof the middle bench was renbeing instructed or informed as to the man- dered unusually and needlessly dangerous as ner of conducting the work and with no a place to work in, and particularly so unknowledge upon that subject, except such as less a system and rules for the safe conduct he had obtained from observation. After of the work were promulgated and enforced he and his fellow workmen had cleared up by the defendant, requiring that warning be the logs that had accumulated at the middle given to the men at the middle bench and bench they retired a short distance and call- sufficient time prior to starting a log down ed for more logs, when Kinney sent others the shoot allowed them in which to retire to clown to them. Some of the logs started by a place of safety; that at the time plaintiff Kinney jumped from the shoot, and while was detailed for work at the middle bench by defendant an employé with a team was plaintiff to be started down the shoot withstationed at the head of the shoot to attend out sufficient previous notice to him, and, to starting the logs down and to see that in disregard of his safety, operated the work warning was given a sufficient time before- at the top of the shoot at the time of the hand to permit the employés at work at the accident in a careless and negligent manner middle bench to take precautions as to their which caused and resulted in the accident safety; that such employé had no other and injury to the plaintiff. duties to perform, and while he was attend- The answer denies all the allegations of ing to his duties logs were sent down at the complaint, except the incorporation of (ertain and regular intervals, and after such the defendant, that it was engaged in the logs as stopped at the middle bench had

lumber and logging business, and that the been cleaned up such employé gave notice plaintiff was employed by it at the time of and warning before the next succeeding lot his injury. For an affirmative defense it is were sent down, and in such manner the alleged that the injury to plaintiff was not employés at work at the middle bench could

due to the negligence of the defendant, but safely perform their duty; that plaintiff be- was the result of the ordinary hazards of lieved and was led to believe that the work

his employment and the negligence of a felwould so continue, but a short time after

low servant; that the shoot mentioned in the he commenced work the defendant, disre

complaint was properly and safely built and garding his safety and without notice to

kept in good repair, and the jumping of the him or with his knowledge, removed such

logs therefrom as alleged was not due to employé and team from the top of the shoot

its faulty construction, but was one of the and directed and instructed the teamsters

ordinary incidents of the business of sendwho were hauling the logs to start them

ing logs down such a shoot and a hazard down the shoot immediately upon their ar

of the employment; that defendant had rival at its head, without any rules or reg

previously adopted, promulgated, and was ulations and without any provision for warn

enforcing rules and regulations known to ing to the persons at work at the middle

the plaintiff for the conduct of its employés bench; that immediately after the removal

in running logs down the shoot; that one of of the employé from the head of the shoot

these rules provided that before a log should the log which caused the injury to the plain

be started the men at work at the middle tiff was sent down by one of the teamsters

bench should be notified, and if the shoot without notice or warning to him ; that

was clear they should immediately seek a for want of such notice or warning he had

place of safety at least 100 feet from the no means of knowing or realizing the dan

shoot and out of danger in case a log should ger, and it was impossible for him to take

leave the shoot, and when in such position the necessary precaution for his safety; that

they were to notify the employé of the deat the time he commenced work at the

fendant stationed at the head of the shoot, middle bench he relied and believed that

who would then start the log down; that proper and susficient warning would be given,

this rule was fully complied with by the and that proper rules and regulations gov

parties stationed at the head of the shoot. erning the conduct of the work had been

but that the plaintiff negligently and carepromulgated and would be enforced, and he had no notice or information that the logs

lessly failed to seek a place of safety after

timely warning had been giren, and therewould be sent down the shoot other than in

by contributed to the cause of his injury. a regular and systematic manner, and he was not instructed or informed as to the

The reply denied all the affirmative allega

tions of the answer. danger that resulted in his injury; that the defendant knew, or could by the exercise

Upon the issues thus joined the cause was of reasonable diligence have known, of the

tried to a jury and verdict rendered in fadangers and that the work of sending logs

vor of the plaintiff for $17,000. A motion down the shoot could not be conducted with

for a new trial, on the grounds (a) that the safety without promulgating and enforcing

verdict is excessive and appears to have rules and regulations for the safe conduct

been given under the influence of prejudice of the work, and that defendant knew, or

and passion, (b) insufficiency of the evidence by the exercise of reasonable diligence could

to justify the verdict, and (c) error of law have known, that to conduct the work with

occurring at the trial, was overruled and out such rules and regulations and the en

judgment entered on the verdict. From this forcement thereof subjected plaintiff to an judgment the defendant appeals, assigning unforeseen and unusual peril that resulted in

error as follows: (1) The overruling of a his injury, notwithstanding which defend- | motion for nonsuit and the refusal to direct ant neglected, failed, and omitted to promul- a verdict for defendant; (2) refusing to ingate or enforce any sufficient rules or regu- struct the jury that if Kinney, the person lations for the safe conduct of the work, and placed at the top of the shoot by defendant neglected, failed, and omitted to give any to start logs down, did start the log which notice or in any manner warn plaintiff of struck and injured plaintiff, they must find the dangers; that the defendant through its for the defendant; (3) instructing that, if negligence caused the log which injured the negligence of the defendant materially contributing to the Injury of the plaintiff adequate rules or regulations among its concurred with the negligence of a fellow employés governing the manner in which the servant, the defendant is liable, even if the work should be done, and providing for negligence of the fellow servant contributed proper and timely warning to the men at to the cause of the injury; (4) instructing work at the middle bench before logs were the jury that if the work in which plain- started down the shoot. tiff was engaged at the time of his injury It is expressly alleged that without the was such as to require rules and regula- enforcement of such rules or regulations the tions for the reasonably safe conduct there place at which plaintiff was put to work of, and the defendant failed and neglected was extremely hazardous and dangerous, and to provide such rules and regulations and that defendant failed and neglected to prosuch failure was the proximate cause of mulgate or enforce any rule or regulation the injury, the plaintiff is entitled to recov- for the safety of its employés, and that the er if he was not negligent himself; (5) mod- want of such a rule or regulation was the ifying two instructions requested by the de- cause of the accident to the plaintiff. That fendant, to the effect that, if the accident to the place at which plaintiff was put to work the plaintiff was due to the negligence of a was extremely dangerous and unsafe without fellow servant, plaintiff could not recover,

the strict enforcement of a rule or regulation by adding thereto the proviso if defendant requiring the men to be warned of the apwas itself without negligence; and (6) the proach of a log, a sufficient length of time overruling of the motion to set aside the ver- allowed to seek a place of safety, and that dict because it is excessive and the result of a failure or neglect of the defendant to prejudice and passion.

promulgate and enforce some such regula

tion would be actionable negligence, are too T. H. Crawford and Zera Snow, for ap

clear for argument. Hartvig v. North Pacific pellant. Leroy Lomax and Gustav Ander

Lumber Co., 19 Or. 522, 25 Pac, 358. And son, for respondent.

one of the issues made by the pleadings

and tried in the lower court was whether BEAN, C. J. (after stating the facts). It is the defendant had discharged its duty in unnecessary to notice the alleged errors seria- this regard. The complaint alleges that it tim, for they are all, except the last, based had failed and neglected to provide or enupon the theory that the complaint charges force such a rule or regulation. This averbut one specific act of negligence as the proxi. ment is not only denied by the answer, but mate cause of the injury to the plaintiff, and it is affirmatively alleged that defendant had that is the removal by the defendant of the promulgated and enforced a rule requiring employé Kinney from the head of the shoot a that before a log should be started down short time before the log causing the injury the shoot the men at work at the middle to plaintiff was sent down, and directing the bench should be notified and given time to teamsters who were hauling logs to start place themselves in a position of safety, them down without instructing them how to and that after they had done so they were do so with safety to the plaintiff and others to notify the parties stationed at the head working at the middle bench. With this of the shoot, who should then send the log construction of the allegations of the com- down. To disregard these averments of the plaint as a premise, counsel argue that the pleadings and the issues thus tendered and motion for nonsuit was well taken because made would be giving to the complaint althe proof shows, as they claim, that Kinney together too technical a construction for the was not removed from the head of the shoot, practical administration of justice, and esbut was at work there at the time the log pecially so since the question does not seem causing the injury to the plaintiff was started to have been raised or suggested until the down, and was in fact the person who start- trial. ed it, and that it was error for the court to It is true the complaint alleges that on the instruct the jury in reference to the duties morning plaintiff went to work at the midof the defendant to promulgate and enforce dle bench defendant had an employé (which suitable rules and regulations governing the the evidence shows to have been Kinney) work of sending logs down the shoot, because stationed at the top of the shoot to attend such instructions were not within the issues to starting the logs and to see that warning made by the pleadings. In this construction of was given to the employés working at the the complaint we are unable to concur. It middle bench in time to take precaution for is perhaps unnecessarily long and prolix, their safety, and that while he was attending but it manifestly proceeds upon the theory to his duties logs were sent down at regular that it was the duty of the defendant to intervals, and notice and warning given exercise reasonable care and prudence to before the next succeeding lot were started, provide the plaintiff with a reasonably safe and that in such manner the work was safeplace in which to work, and that from the ly conducted, but that a short time before nature and character of the work at the the accident this employé had been removed middle bench, and the dangers necessarily and the teamsters directed to send the logs attending it, it was not such a place unless down immediately and without any system, the defendant had established and enforced and that after the removal of such employé

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