267 P. 818
Oregon Supreme Court.Submitted on briefs March 12, 1928
Affirmed May 29, 1928
Page 564
From Jackson: C.M. THOMAS, Judge.
This is an action to recover the sum of $875.33 which the plaintiff alleges is a balance due arising out of the sale of a quantity of wheat by the plaintiff to the defendants.
The complaint alleges that December 8, 1924, the plaintiff and the defendants entered into an agreement, whereby the plaintiff undertook to deliver to
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the defendants for storage a quantity of wheat, and that the defendants agreed to store it. Continuing, the complaint alleges that the plaintiff delivered to the defendants 3,581 bushels; it recites that upon the same day the parties entered into a further agreement and expressed it in writing to this effect:
“That whereas the said first party has this day sold to the said second parties and the said second parties have this day bought from the said first party all of said first party’s wheat now stored in the Central Point Mills consisting of 3581 bushel and 31 pounds of club wheat as shown by said first party’s warehouse receipt.
“The price agreed upon is $1.50 per bushel.”
“The said second parties are to have delivered to them today one thousand bushel of said wheat and are today paying to said first party fifteen hundred dollars, the receipt of which sum is hereby acknowledged by said first party.
“The balance of the wheat is to be evidenced by a new warehouse receipt for 2581 bushels and 31 pounds, which said wheat is to be delivered to and accepted by said second parties as follows: An amount equal to $1,000 on the eighth day of January, 1925, and a like amount on the eighth day of March 1925 and the balance on the eighth day of April 1925 and said second parties do hereby agree to accept said wheat at said times and pay for same on said dates to said first party at the rate of $1.50 per bushel.
“New warehouse receipts are to be issued to said first party when any amount has been taken from said wheat, thereby keeping a complete record of the amount in the warehouse so in case of fire the said first party may make claim for the insurance thereon.”
The complaint alleges that thereafter the defendants withdrew from the warehouse from time to time, various quantities of wheat, each time paying for
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the quantity withdrawn and that each time the defendant delivered to the plaintiff a new warehouse receipt covering the quantity remaining in storage. It is averred that on April 8, 1925, there remained in the defendant’s warehouse 1,248 bushels and 11 pounds, and that on that day the defendant paid the plaintiff $1,000 and issued to the plaintiff a new receipt for 581 bushels and 31 pounds which the plaintiff declares constituted the balance of wheat remaining in the defendants’ custody. The complaint avers that the defendants have not paid for this remaining quantity and asks judgment for $875.33, representing its value at the price of $1.50 per bushel.
The answer sets forth that August 23, 1923, the plaintiff delivered to the defendants 105 bushels of baart wheat which was placed in Bin No. 1, 2,893 bushels and 53 pounds of club wheat, which was placed in Bin No. 2, and 1,864 bushels and 21 pounds of club wheat, which was placed in Bin No. 4; thus they admit the receipt of a total of 4,863 bushels and 14 pounds.
The defendants allege that between October 20, 1923, and May 15, 1924, the plaintiff removed the entire contents of Bins 1 and 4, leaving in the defendants’ possession only the contents of Bin No. 2, 2,893 bushels and 53 pounds, but that through the error of the defendants the plaintiff was charged with the removal of only 1,176 bushels and 53 pounds from Bin No. 4. Thus the defendants say that on December 8, 1924, through their error, they were led into believing that there was in Bin No. 2, 3,581 bushels and 31 pounds, when in fact there was only 2,893 bushels and 53 pounds, but that through the error of the defendants the plaintiff was charged with the removal of only 1,176 bushels and 53 pounds from Bin No.
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4. Thus the defendants say that on December 8, 1924, through their error, they were led into believing that there was in Bin No. 2, 3,581 bushels and 31 pounds, when in fact there was only 2,893 bushels and 53 pounds in that bin. Continuing, the defendants aver that thus through their mistake, they charged themselves with 3,581 bushels and 31 pounds as the contents of Bin No. 2, and that thereafter as they deducted from time to time the quantities they purchased, the error crept into each warehouse receipt by reason of the original mistake in miscalculating the contents of Bin No. 2. They allege that they have paid for all the wheat they have received, and have actually overpaid the plaintiff $159.17, and ask for judgment against the plaintiff in that amount.
The reply denies this new matter and pleads an estoppel; since the estoppel is not involved in our inquiries we shall not review these allegations.
After the plaintiff had submitted his evidence in support of the allegations of his complaint, the defendants offered evidence of the mistake averred in the answer; objections to this evidence were presented on the theory that the written instrument previously quoted “amounts to an agreement that the grain is there,” and that such an agreement cannot be varied by parol evidence. These objections were sustained, and the court directed a verdict in favor of the plaintiff; judgment was entered upon it and the defendants appeal. AFFIRMED.
For appellants there was a brief over the name of Mr. F.J. Newman.
For respondent there was a brief over the name of Mr. Porter J. Neff.
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ROSSMAN, J.
It is unnecessary to cite authorities in support of the statement that the agreement of the parties wherein the defendants agreed to purchase the plaintiff’s wheat was protected by the parol evidence rule. It is this written instrument upon which the plaintiff founds this action. This document describes the article sold by using this language: “consisting of 3,581 bushels and 31 pounds of club wheat as shown by said first party’s warehouse receipt.” This receipt also stated the quantity as 3,581 bushels and 31 pounds. The warehouse receipts were likewise subject to the parol evidence rule: Hirsch v. Salem Mills Co., 40 Or. 601 (67 P. 949, 68 P. 733); 4 Jones on Ev. (2 ed.), p. 2999.
The defendants do not dispute the foregoing application of the parol evidence rule to the documents introduced in evidence. Their principal contention is that the agreement should be construed as an undertaking upon the part of the defendants to purchase some grain, the exact quantity of which had not been ascertained. They relied particularly upon the fact that the agreement was not to pay a definite sum, but to pay at the rate of $1.50 per bushel. We do not believe that the agreement is susceptible of the construction that the defendants were purchasing an unascertained amount of wheat. The contract specifies the exact amount; next it refers to a warehouse receipt, and instruments of the latter class generally set forth quantity with considerable precision. It is also worthy of observation that each time wheat was withdrawn, a new warehouse receipt was issued specifying the precise quantity left in the warehouse. It would seem strange that this routine would be pursued if its final result was to mean nothing. Further it is quite unlikely that one who
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had parted with the possession of his grain and placed it in the custody of a miller would be content to depart without ascertaining the quantity thus deposited. To the seller an agreement as to quantity would be just as important as an agreement as to the price. The transaction would be as likely to result without profit to the seller if quantity was subject to later review, as if the price could be later revised. In view of the fact that the wheat was deposited in bins whose dimensions were known, or at least ascertainable, it is difficult to understand why the parties would not fix the quantity then and there. But the all-important fact is that they did fix the quantity, and set it forth as 3,581 bushels and 31 pounds, and wrote the same in their formal agreement and also in a warehouse receipt. We believe that the defendants are bound by the words used. Having thus construed the contract it follows that the defendants were bound to pay $1.50 per bushel for 3,581 bushels 31 pounds.
The defendants argue that the court erred when it entered a final judgment against them; they contend that the court should have retained jurisdiction, and should have proceeded to try the allegations of the answer as a cross-bill for the reformation of the contract. This portion of the answer is entitled: “further and separate answer and defense herein, and as their counter claim herein * *” It prays for no equitable relief; it demands that the plaintiff take nothing, and that the defendants have judgment against the plaintiff for $159.17. It is true that a pleading need not be labeled, and a prayer for the wrong relief following a pleading which sets forth facts entitling the pleader to some relief does not operate to deny the proper relief, but the title and
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the prayer serve a useful purpose if they indicate the pleader’s conception of the use to which he expects to put his pleading. In this case the title, the prayer and the defendants course at the trial indicated that the defendant’s were not endeavoring to reform an instrument, but were relying upon a theory of payment. For instance, they proceeded to trial with a jury; they did not endeavor to take answers over the objections under the equity rule and they did not endeavor to amend the pleadings when the court directed the verdict. At no stage of the proceedings in the lower court did they seek to have the answer construed as a plea for reformation of the instrument. That relief is asked for the first time in this court upon appeal. We cannot give it ourselves because the answers were not taken over objection.
With this state of the record it would seem unjust to the plaintiff to remand the case to the court below to proceed as a suit for the reformation of the instrument. Litigation is slow enough without encouraging a further delay by permitting a litigant to experiment first with the one theory and when that proves unavailing try out another on appeal. Our code of pleading permits a defendant to present as many defenses as he may possess, but he must set them forth all in the one answer, and not offer first one and have a trial upon it, and then file another.
It follows from the foregoing that the judgment of the lower court is affirmed. AFFIRMED.
RAND, C.J., dissents, and COSHOW and McBRIDE, JJ., concur.
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