Ahlquist v. ALASKA-PORTLAND PACKERS'ASS'N, 6022.

• Decision Date: 17 March 1930
• Docket Number: No. 6022.,6022.
• Citation: 39 F.2d 348
• Parties: AHLQUIST et al. v. ALASKA-PORTLAND PACKERS' ASS'N.
• Court: U.S. Court of Appeals — Ninth Circuit

39 F.2d 348 (1930)

AHLQUIST et al. v. ALASKA-PORTLAND PACKERS' ASS'N.

No. 6022.

Circuit Court of Appeals, Ninth Circuit.

March 17, 1930.

H. W. Hutton, of San Francisco, Cal., and Lord & Moulton, of Portland, Or., for appellants.

Carey & Kerr, Omar C. Spencer, and David L. Davies, all of Portland, Or., for appellee.

Before RUDKIN, DIETRICH and WILBUR, Circuit Judges.

WILBUR, Circuit Judge.

Libelants claim the sum of $50.63 each, a total of $3,645.33, under a written agreement with the respondent Alaska-Portland Packers Association for the salmon fishing season of 1928 in Alaskan waters. The agreement referred to was attached to and made a part of the shipping articles, and each of the men signed the agreement. It is conceded that the agreement is several and not joint, and that under the terms of the agreement the amount claimed by the libelants is due. The controversy is solely over the question of whether or not the agreement was modified by an oral agreement wherein the respondent agreed to waive a provision of the written contract under which it was authorized to limit the amount of each day's catch of salmon, and the libelants agreed in consideration of that waiver to waive the provision of the contract under which the amounts now sought to be recovered were payable as an allowance to them upon fish purchased from outside fishermen. It is established by the evidence that such an agreement was effected between Mr. Daly, the superintendent of the respondent, thereto authorized by Mr. Warren, the president, and Mr. Mustonen, the delegate elected by the libelants, and authorized to represent them for certain purposes defined in the aforesaid written agreement. In view of this undisputed evidence, the sole question in the case is as to whether or not the delegate, Evert Mustonen, was authorized to make such an agreement on behalf of the libelants. The burden of proving such authority is upon the respondent. In view of the fact that the contract is several, this authority must proceed from each of the libelants. There is no direct evidence of any such authority.

Mustonen denies that there was any meeting at which he was authorized to make such an arrangement, and the testimony of such of the other libelants as were called as witnesses is to the effect that no meeting was held authorizing such change and that they did not authorize the change in the agreement made by Mustonen. The respondent states the problem thus:

"The simple question is whether under the facts and circumstances presented in this case, this body of men — about 70 — unwieldly in number and many of them ignorant of the English language, could and did so arrange with their delegate that he would represent them."

There is testimony to the effect that it was therefore customary in dealing with the men to deal with them through their elected delegate. In that regard, Frank M. Warren, vice president of the respondent, testified as follows:

"Mr. Lord, the delegates that have been in Alaska have been business agents for those men every single year they have been up there, and they have transacted all the business for the men, and when there is any question or dispute, they have handled it, and there has never been one bit of question about it at any time. * * *

"We recognized the delegate as the man with whom we did the business — dealing with — and always have. Once in a while the delegate would bring a man over with him, when they couldn't reach a solution, he would then bring a man over with him, and the two of them would discuss it together occasionally. They had different methods of doing business. But the delegate was the man through whom the company dealt. If we wanted the men to go out and do work, we went to the delegate; if there was anything to be changed, we went to the delegate."

This evidence falls short of showing authority from the libelants to the delegate to change the terms of their written agreement. Whatever may have been the custom of the respondent in dealing with the other seamen and other fishermen on other occasions, and in other seasons, could not be binding upon the libelants who were not shown to have participated in similar dealings. It is sought also to bind the libelants to the parol agreement for the modification of their written contract made by Mr. Mustonen by the fact that they accepted the...