Saletic v. Stamnes

Decision Date13 February 1958
Docket NumberNo. 34268,34268
Citation321 P.2d 547,51 Wn.2d 696
PartiesJack SALETIC and Peter Babich, Appellants, v. Irving STAMNES and Jane Doe Stamnes, his wife; and Mike Borovina and Jane Doe Borovina, his wife, Respondents, George Dagnnelli, John Borovina, Jr., Kenneth G. Kendell, Carlo Andrich, Richard Hafner, Evon L. Ualich, Jay J. Kane, Lionel Henderson, Nick Milosevich, Charles F. Charles, Nick Scrivanich, Philip M. Visich, George Ruljancich, Nick Miachika, Martin Mirkovich and Tom Bolone, Additional Respondents.
CourtWashington Supreme Court

Anthony M. Ursich, Richard J. Jensen, Tacoma, for appellants.

Landon & Aiken, Seattle, for respondents.

FOSTER, Justice.

Appellants, who were plaintiffs below, appeal from a final judgment, after trial, dismissing their complaint for an accounting of a joint venture. The evidence is not brought here, so the question is: Do the findings support the judgment? This depends upon whether or not the bilateral contract, 1 which is set out in the findings as follows, was entire or severable:

'* * * It is hereby mutually agreed by all parties hereto concerned that the Purse Seine Boats Emblem, Holy Cross, Sea Foam and Invincible are to pool all fish caught by them during the entire fishing season in the Alaskan Peninsula and Port Moller Areas, each boat to share and share alike the gross proceeds derived therefrom. * * *'

The court found that the parties did fish their boats in accordance with the contract from the time of its execution on June 14, 1952, until June 28, 1952, when the appellants abandoned the enterprise and returned their vessels to the United States 'in breach of their contract and without justification.' It was admitted at our bar that the respondents continued to fish for the remainder of the season.

The court made a conclusion of law that the contract was entire and not severable. We cannot find otherwise without the evidence. Appellants' counsel, with commendable fairness, conceded in argument that if the contract is entire the judgment should be affirmed. The respondents argue there were inequalities in the capacities of the boats which could be equalized only by fishing the entire season. For aught we know, respondents' boats may have had the advantage during the first portion of the fishing season when both parties fished all of their boats, and the reverse may have been true during the balance of the season when only respondents' boats fished. While respondents so contend and appellants do not deny, we cannot test the accuracy of the statements in the absence of the evidence. Certain it is, however, we cannot say that at the time of the execution of the contract the parties had any circumstances in mind which would make it severable.

Appellants' counsel admitted in argument that the appellants breached their contract, as found by the trial court, by abandoning the joint venture two weeks after the contract was executed. No excuse was offered therefor, and the court found that there was none.

Nevertheless, the appellants insist upon the equitable remedy of an accounting--not for the entire fishing season, but for the two weeks preceding appellants' breach of the contract.

Appellants did not offer to do equity in their complaint. It seems strange, indeed, that suitors, admitting their breach of a joint venture contract, should seek the aid of a court of equity to enforce rights claimed by them under the identical contract. No one may profit by his own wrong. It seems to us that by their own admitted misconduct appellants forfeited any rights to an accounting. We think the controlling rule of law under such circumstances was well stated in Miller v. Hale, 96 Mo.App. 427, 70 S.W. 258, 259:

'But a partner--especially one for a special purpose--may abandon the contract, and thereby forfeit his right to an equal share of the proceeds of the business. Henry v. Bassett, 75 Mo. 89; Denver v. Roane, 99 U.S. 355, 25 L.Ed. 476; Appeal of Marsh, 69 Pa. 30, 8 Am.Rep. 206; Appeal of Zell, 126 Pa. 329, 17 A. 647. * * *'

While we might rest our decision upon that ground alone, because of the earnestness with which the appellants' counsel presents his views that the contract was severable and the trial court found it to be entire and inseverable, we pass to a consideration of that subject.

We think the contract entire, and the agreement by its terms was to pool 'all fish caught by them during the entire fishing season.' There was certainly no contract to pool the fish caught for a fraction of the season. The parties might not have been willing to make such an arrangement because of the asserted inequalities in the capacities of the boats, but certain it is that we cannot now make such anb agreement for them.

The rule for determining whether a contract is entire or severable was stated in Traiman v. Rappaport, 3 Cir., 41 F.2d 336, 338, 71 A.L.R. 475, 479, as follows:

'* * * Whether a contract is entire or divisible depends very largely on its terms and on the intention of the parties disclosed by its terms. As a general rule a contract is entire when by its terms, nature and purpose, it...

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31 cases
  • Multicare Medical Center v. State, Dept. of Social and Health Services, 2
    • United States
    • United States State Supreme Court of Washington
    • April 26, 1990
    ...Cook, at 23, 221 P.2d 525. See also Browning v. Johnson, 70 Wash.2d 145, 422 P.2d 314, 430 P.2d 591 (1967); Saletic v. Stamnes, 51 Wash.2d 696, 321 P.2d 547 (1958); Higgins v. Egbert, 28 Wash.2d 313, 182 P.2d 58 (1947). Thus, it appears that RCW 74.09.120 allows DSHS to purchase MI-GAU hosp......
  • Zuver v. Airtouch Communications, Inc., 74156-5.
    • United States
    • United States State Supreme Court of Washington
    • December 23, 2004
    ...stay and/or compelling arbitration, including reasonable attorneys' fees." CP at 36-37. 20. Relying on Saletic v. Stamnes, 51 Wash.2d 696, 321 P.2d 547 (1958), Zuver argues that the unconscionable provisions of her contract are not severable because she assented to all the provisions in the......
  • Adler v. Fred Lind Manor
    • United States
    • United States State Supreme Court of Washington
    • December 23, 2004
    ...each and all of its parts are interdependent and common to one another and to the consideration." Saletic v. Stamnes, 51 Wash.2d 696, 699, 321 P.2d 547 (1958) (quoting Traiman v. Rappaport, 41 F.2d 336, 338 (1930)). However, Washington courts have not applied the rule set forth in Saletic t......
  • McCausland v. McCausland, 31892-0-II.
    • United States
    • United States State Supreme Court of Washington
    • August 30, 2005
    ...each and all of its parts are interdependent and common to one another and to the consideration." Saletic v. Stamnes, 51 Wash.2d 696, 699, 321 P.2d 547 (1958) (citation omitted). In other words, a contract is "entire," rather than severable, when "the parties assented to all the promises as......
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