Obrázky stránek
PDF
ePub

Agreement to buy defined.

California, § 1728. An agreement to buy is a contract by which one engages to accept from another, and pay a price for the title to a certain thing. (Kerr's Cyc. Civ. Code.)

The following statutes treat of the same subject as the foregoing:

Montana, Rev. Codes 1907, § 5083. North Dakota, Rev. Codes 1905, § 539S. South Dakota, Rev. Codes 1903, C. C. § 1303.

Agreement to sell and buy defined.

California, § 1729. An agreement to sell and buy is a contract by which one engages to transfer the title to a certain thing to another, who engages to accept the same from him and to pay a price therefor. (Kerr's Cyc. Civ. Code.)

The following statutes treat of the same subject as the foregoing:

Montana, Rev. Codes 1907, § 5084. North Dakota, Rev. Codes 1905, § 5399. South Dakota, Rev. Codes 1903, C. C. § 1304.

Property subject of agreement for sale.

California, § 1730. Any property which, if in existence, might be the subject of sale, may be the subject of an agreement for sale, whether in existence or not. (Kerr's Cyc. Civ. Code.)

The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown:

a Arizona, Laws 1907, p. 229, § 5, subs. 1, 2. § 5085. North Dakota, Rev. Codes 1905, § 5400.

1903, C. C. § 1305.

a Arizona, Laws 1907, pp. 229, 231, § 5. (1) The goods which form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract to sell, in this act called "future goods."

Montana, Rev. Codes 1907,

South Dakota, Rev. Codes

(2) There may be a contract to sell goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. (Enacted March 21, 1907.)

Sale at auction-Rights of buyer.

California, § 1796. If, at a sale by auction, the auctioneer, having authority to do so, publicly announces that the sale will be without reserve, or makes any announcement equivalent thereto, the highest bidder in good faith has an absolute right to the completion of the sale to him; and, upon such a sale, bids by the seller, or any agent for him, are void. (Kerr's Cye. Civ. Code.)

The following statutes treat of the same subject as the foregoing:

Montana, Rev. Codes 1907, § 5126. North Dakota, Rev. Codes 1905, § 5440. South Dakota, Rev. Codes 1903, C. C. § 1345.

§ 314. COMPLAINTS [OR PETITIONS].

FORM No. 619-For breach of contract of sale and to recover for goods sold. (Adapted from Savage v. Salem Mills Co., 48 Ore. 1; 85 Pac. 69; 10 Am. & Eng. Ann. Cas. 1065.)

[Title of court and cause.]

The plaintiff complains of the defendant, and for cause of action alleges:

1. That the defendant is, and during all times herein mentioned has been, a corporation duly organized and existing under and by virtue of the laws of the state of Oregon, and doing therein a general milling business; that at all the times mentioned in this complaint, and for many years prior thereto, the defendant had owned and operated a flouring-mill, having in conjunction therewith, and connected thereto by stationary mechanical wheat-conveyors, a storage-house, to hold and retain wheat received by it until such wheat shall be sold or manufactured into flour or other mill products; that during all the times herein mentioned it was the custom and usage of the defendant to receive wheat from the farmers, giving load-checks therefor, showing the name of the person from whom received, the date and number of bushels, and thereafter, at the convenience of the parties, issue a receipt to the holders of such load-checks, a copy of which receipt is hereunto annexed and made a part of this complaint, and marked "Exhibit A"; that it was also during all said times the custom and usage of the defendant, known and agreed to by the parties delivering wheat to it, to mix the wheat received with its consumable stock, and to sell the same, or grind it into flour and sell the flour at its pleasure, and to retain the proceeds thereof; and that the party delivering the wheat, by paying 22 cents per bushel for storage and 32 cents per bushel for sacks, could demand payment for the wheat so delivered in merchantable wheat at any time before the 1st day of July next following the delivery, subject, however, to the defendant's preferred right to purchase, but in case such demand should not be made prior to the date stated, it shall be optional with the defendant whether to pay the quantity price of wheat of the kind and quantity delivered at the date of the demand, or deliver an equal quantity of merchantable wheat upon the payment of the storage and for sacks.

2. That said custom and usage were known and agreed to by all parties doing business with the defendant, and in delivering wheat, and in issuing the receipt mentioned, the parties contracted with reference to such usage and custom, and such receipt was based upon and controlled thereby.

3. That on the day of August, 1899, the plaintiff delivered to the defendant, at its mill, 2,092 bushels and 12 pounds of merchantable wheat, and received from it the customary load-checks therefor; that such wheat was delivered to and accepted by the defendant under and in accordance with such usage and custom, and not otherwise, and the same constituted and was the contract in reference thereto; that no part of the wheat so delivered was ever returned to the plaintiff or paid for in money or in kind, except 55 bushels and 12 pounds, paid in mill-feed and flour, leaving a balance of 2,037 bushels due the plaintiff; that soon after receiving the wheat the defendant sold and disposed of the same and applied the proceeds to its own use; that on August 17, 1901, the plaintiff tendered to defendant the requisite amount for storage and for sacks, and demanded the delivery to him of 2,037 bushels of merchantable wheat, or the payment of fifty cents a bushel, the value thereof, but defendant refused to do either.

Wherefore, the plaintiff prays judgment against the defendant for the value of said wheat retained by the defendant and undelivered as aforesaid, amounting to $ and for interest thereon from

[ocr errors]

the date of the demand aforesaid, and for costs.

[Verification.]

W. T. Slater, and

W. M. Kaiser, Attorneys for plaintiff.

FORM No. 620-For breach of contract to furnish engine and engineer at

opening of threshing season.

(Adapted from Hoskins v. Scott, 52 Ore. 271; 96 Pac. 1112.) [Title of court and cause.]

day of

[ocr errors]
[ocr errors]

Plaintiff complains of defendant, and for cause of action alleges: That on the 19 the defendant, for a valuable consideration, agreed with the plaintiff to furnish plaintiff an engine and a competent engineer to run plaintiff's machine purchased by plaintiff from defendant, during the threshing season of the year 1906, commencing on or about the , and ending on

day of

or about the day of in said year; that the plaintiff, relying on said promise of the defendant, made the necessary arrangements, including procurement of the complement of men necessary to begin and carry on successfully threshing during and for said season, and made all necessary arrangements at the opening of said season, pursuant to said contract and promise of the defendant; that the plaintiff performed in all respects said contract upon his part, and notified defendant in due time that plaintiff expected defendant to be ready with the engine and engineer at the opening of the threshing season, as promised, so that plaintiff could engage in threshing during said season, and demanded of defendant that he furnish the engine and engineer according to their contract, which defendant neglected and refused to do during said season or at any time, to the damage of the plaintiff in the sum of $ Wherefore, plaintiff prays judgment against defendant for the sum of $ damages and costs of suit.

A. B., Attorney for plaintiff.

FORM No. 621-For breach of contract in furnishing irrigating plant.

(In Irvine v. Rapp, 9 Cal. App. 375; 99 Pac. 409.)

[Title of court and cause.]

1-8. [After introductory part, averments of copartnership, of agreement to furnish pumping plant, and breach of said agreement, the complaint, with reference to defendants' default and the damages occasioned by said breach, proceeds as follows:]

9. * * That defendants have wholly failed, neglected, and refused, and do now refuse, to remedy such defects, or to supply such omitted parts, or to perform their said contract in these respects; that' plaintiff was thereby, by the acts of defendants, compelled to employ other parties to remedy such defects and supply such omitted parts, all at a necessary cost to plaintiff in the premises of the sum of $250. 10. That solely by reason of, and as the immediate and direct and necessary result of, the said failure of defendants to perform their said contract plaintiff was prevented from irrigating said alfalfa or any thereof during the said months of June and July, 1900, or at any time thereafter; that in consequence all said alfalfa died and was lost to the plaintiff; that as a further and necessary consequence of said failure of defendants to perform their said contract in the time stipulated in said agreement, plaintiff suffered a loss of a subsequent and

second crop of alfalfa, all of which alfalfa could have been saved and crops harvested if defendants had duly performed their said contract; that plaintiff was damaged by the loss of said two crops of alfalfa in the sum of $2,577.50.

Wherefore, plaintiff prays judgment against defendants in the sum of $2,827.50, together with interest thereon and costs, and for such other and further relief as shall appear to be just.

[Verification.]

George W. Towle, Attorney for plaintiff.

FORM No. 622—Upon contract to purchase stock in default of corporation to pay dividends.

(Adopted from Marinovich v. Kilburn, 153 Cal. 638; 96 Pac. 303.)1 [Title of court and cause.]

Comes now the above-named plaintiff, and, complaining of the above-named defendant, for cause of action alleges:

1. That heretofore, to wit, on the 21st day of July, 1903, defendant entered into a contract in writing with plaintiff, wherein defendant agreed that, if the plaintiff would pay to the Watsonville Transportation Company, a corporation, in full for 50 shares of its capital stock, at the rate of $60 per share, defendant would, in the event of the nonpayment by said company of an annual dividend of not less than 312 per cent upon the said purchase price of said stock, pay to plaintiff said sum, to wit, 32 per cent upon said purchase price, and, further, would thereupon purchase said stock at any time, upon the request of plaintiff, and after the default of the company in paying said dividend; that by said agreement defendant further promised to pay plaintiff for said shares of stock, in the event of said

[ocr errors]

*

1 The complaint in this action, as the same appears from the records thereof, shows that prior to the date of the agreement to repurchase the stock in the event of default of the corporation to pay a dividend or dividends the plaintiff had agreed with the company to purchase the fifteen shares of stock, and had made a partial payment thereon of $750, and that, to induce the plaintiff to pay the balance upon said obligation, the agreement aforesaid was made. The court in reversing the case stated that there was no sufficient consideration for the agreement on the part of the defendant to buy the stock and pay the plaintiff $3,000 therefor in the event of the default of the corporation to pay dividends, inasmuch as it had already become the plaintiff's duty to perform the obligation which he had entered into and upon which he had made a partial payment; and held, further, that the consideration of the original contract could not attach to the subsequent promise. (The form here given assumes an original contract upon the strength of defendant's promise to repurchase, and the averment showing that the party making the promise to repurchase was a stockholder in the company implies a consideration): Marinovich v. Kilburn, 153 Cal. 638, 96 Pac. 303, 304.

« PředchozíPokračovat »