Gaines v. Vandecar

Opinion by

1. The transcript on appeal was filed March 18, 1911, and after the briefs upon the appeal were filed on April *19129, 1911, a motion to dismiss the appeal, for the reason that the judgment is not final, was filed by defendant, and this motion is first insisted upon. There is no doubt that defendant, by his motion, sought to obtain a final judgment, and both parties, as well as the court, considered that the judgment rendered was such. The recitals therein disclose a case ripe for judgment, and it was only a clerical omission that it did not state that the case be dismissed. If defendant’s counsel did not draw the entry, it was his duty to see that it was correctly entered; and he has treated it as a final judgment until filing this motion, and he should not now be heard to question its form. And we are justified in recognizing it as final, and the motion is denied.

The contract was evidently drawn by a' layman, who did not understand the technical meaning of some of the terms he used. By the contract, the first parties are made liable for one-half of the difference between the existing rate and any reduction that may be made. The existing rate is not alleged; hence the difference cannot be computed; but probably it was intended to require payment of only half of the amount of the reduction, but it is not so stated. Neither does it fix the time within which it is to be performed, but includes all future reductions in rates.

2. The first ground of the demurrer is that there is a nonjoinder of defendants; defendant insisting that the contract is joint. The same inaccuracy in the contract appears as to the joint and several liability of the first parties. The first obligatory clause is that they promise to pay to the second party one-half the difference between the ^existing rates and the reduction in freight on all the grain raised by all of the first parties — clearly a joint promise to pay the liability created by the contract. But the next clause is that they, and each of them, agree to make such payment, thus clearly making it a joint and *192several promise; each of the signers binding himself to pay the whole liability. Before the contract was signed, the last clause was inserted, which limits their liability by stating in substance that each shall be liable for one-half of the difference between the old rate and the reduction on his own crop only, thus making it a several contract, and not joint. In construing such a contract, it should be taken by the four corners, and the intent of the signers gathered therefrom, if it is possible to do so, giving due consideration to every part thereof. In Lachmund v. Lope Sing, 54 Or. 106, 111 (102 Pac. 598, 600), it is said, that “the contract must be construed to effect the intention of the parties as gathered from the entire instrument; and, if there are repugnant clauses, they must be reconciled, if possible. The intent, and not the words, is the essence of every agreement, if it can be ascertained therefrom.” No layman could read this contract with any other understanding than that one signing it would be liable only for the amount computed on his own crop; and it is our duty to construe it as it was intended by its signers, if possible to do so without doing violence to any of its terms. This last clause is not, as counsel for defendant urges, a subsequent agreement among the parties of the first part alone; but it is a part of the contract “by and between the parties hereto,” and we conclude that it is a several contract.

3. However, to determine what is the effect of the contract is a more difficult question. Is it so definite as to the undertaking of Peebler as to make it enforceable against him? It does not bind him to do any definite or specific thing, so that he was not liable thereon to the-first parties, either in damages for nonperformance or in a suit for specific performance. There was no mutuality of obligation. The principal undertaking on his part is to agitate for a reduction in freight rates. What that might contemplate is not specified, and is not the subject *193of proof, nor capable of specific performance. Other things to be done by him, mentioned therein, are only at his own option, as he may deem necessary and proper.

4. Every contract must be definite and certain as to the terms to be performed by either party, and, if it is so uncertain and ambiguous that the court is unable to collect from it what the parties intended, the court cannot enforce it; and since there is no obligation there is no contract. If the contract in any case is so indefinite as to make it impossible for the court to decide just what it means, and fix exactly the legal liability of the parties, it cannot result in an enforceable contract. 9 Cyc. 248. To the same effect are Pollock, Contracts, 48; Fairplay School Township v. O’Neal, 127 Ind. 95 (26 N. E. 686); Barton v. Spinning; 8 Wash. 458 (36 Pac. 439); Marble v. Standard Oil Co., 169 Mass. 553 (48 N. E. 783).

The contract by its terms was intended to bind the farmers to pay without any consideration moving to them, as they promise to pay “whether the said reduction shall hereafter be voluntarily made by said transportation lines conveying from said territory, or the said reduction in said rates shall result from the agitation set on foot by the said party of the second part, his agents, servants and employees, or from proceedings instituted by the said party of the second part for such reduction or from any other cause.” This clause of the contract alone indicated bad faith on the part of Peebler — an attempt to create a liability on the part of the farmers without obligation on his own part. The contract is not mutual, and the promise of defendant to pay is without consideration, and is void.

The judgment is affirmed. Affirmed,

*194Decided June 22, 1911.

On Petition for Rehearing.

[115 Pac. 1122]

Opinion- by

By the petition for a rehearing it is contended that the contract was fulfilled on the part of plaintiff and that, the conditions being fulfilled, defendant cannot question its validity. But the fallacy of plaintiff’s position is in assuming that the contract provides for the doing of some specific acts, and that the acts so contracted for were performed by plaintiff. As held in the opinion, the contract does not specify anything definite to be done. If the complaint alleged generally that plaintiff performed all the conditions of the contract, which would be a sufficient allegation of performance, it could not aid his pleading, as it cannot be known what conditions are to be performed; and the contract is not aided by an allegation that he did a great many things, the court being unable therefrom to say that such acts were the acts specified in the contract. Defendant cannot be required to accept the pretended performance alleged in the complaint as the fulfillment of the contract. The contract is void for indefiniteness.

Motion denied. Affirmed: Rehearing Denied.