Asbury v. Yakima Mill. Co.

• Decision Date: 08 January 1926
• Docket Number: 19427.
• Court: Washington Supreme Court
• Parties: ASBURY v. YAKIMA MILLING CO.

242 P. 362

137 Wash. 203

ASBURY v. YAKIMA MILLING CO.

No. 19427.

Supreme Court of Washington

January 8, 1926

Department 1.

Appeal from Superior Court, Yakima County; Nichoson, Judge.

Action by H. M. Asbury against the Yakima Milling Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Rigg &amp Venables and Nat. U. Brown, all of Yakima, for appellant.

Grady &amp Velikanje, of Yakima, for respondent.

TOLMAN C.J.

The appellant, on February 26, 1923, sold to the respondent certain alfalfa hay under a written contract which reads:

'Toppenish, Wash., Feb. 26, 1923.

'Yakima Milling Co., Yakima, Wash.--Gentlemen: I confirm purchase of you to-day of 5 cars 93% pure 1st cut. Alf. at $21.00 per ton f. o. b. track Ashue, Wash., for loading prompt.

'This confirms our conversation in my office at Toppenish, also phone call to you of this evening.

Yours very truly,

'[Signed] H. M. Asbury.

'Accepted by _____.'

Respondent immediately resold the hay to one V. J. W. Alexander, as agent for Higgins & Walker, also under written contract which reads:

'V. J. W. Alexander, Sunnyside, Wash.--Dear Sir Confirming sale to you to-day of five (5) cars first cutting alfalfa ninety three percentum (93%) pure of good green color to be loaded f. o. b. cars Ashue Siding, Washington, at the agreed price of $22.00 per ton, on or after the 1st day of March, 1923. Hay to be paid for as loaded.

'Buyer has paid the sum of $150.00 as an advance payment on hay and advance to be deducted from the last two cars loaded at the amount of $75.00 per car.

'H. M. Asbury,

'Seller.

'Accepted by V. J. W. Alexander, Buyer.'

The hay was duly delivered, and shortly thereafter Higgins & Walker made claim to the respondent that the hay was not as warranted, in that it was not 93 per cent. pure alfalfa, and was not of good green color. This claim being unadjusted, Higgins & Walker brought suit in the superior court for Yakima county against both respondent and the appellant to recover the damages flowing from the alleged breach of warranty, seeking to hold the appellant in that action upon the ground that it was the principal and that the respondent, Asbury, was acting only as its agent in selling the hay to Higgins & Walker. Upon the trial of that case, at the close of plaintiff's evidence, a motion for nonsuit was granted in favor of the appellant, and it was dismissed from the case. The action proceeded to judgment against the respondent, Asbury, resulting in a judgment against him which was entered on May 28, 1924. Thereafter the respondent, Asbury, in turn brought this action against the Yakima Milling Company to recover from it the amount of the judgment recovered against him by Higgins & Walker, together with his costs and attorneys' fees in that suit, amounting in all to the sum of $382.83. In his complaint Asbury pleaded the written contract under which he purchased the hay from the appellant, and alleged that both parties knew that the hay was being purchased for resale. The contract of resale to Higgins & Walker was also pleaded, and it was alleged that the appellant, Yakima Milling Company, was bound by the judgment rendered against Asbury in the Higgins & Walker suit, because it had conducted and controlled the defense and was the active and moving spirit throughout the trial, etc. The trial court held that by its participation in the former action the Yakima Milling Company was bound by the judgment there rendered, and thereupon, denying to respondent his attorneys' fees in the former action, rendered judgment against the appellant for $304.33, from which judgment it appeals.

In the original complaint in this action filed by the respondent it is alleged:

'On or about the 26th day of February, 1923, the plaintiff and defendant entered into a verbal agreement wherein and whereby the defendant agreed to sell and deliver to the plaintiff five carloads of first cutting alfalfa hay, and warranted the same to be 93 per cent. pure, at the price of $21 per ton, f. o. b. track, Ashue, Wash., and thereupon said verbal agreement was confirmed and reduced to writing in duplicate, each party having and retaining one of such duplicates, and the same being in words and figures as follows, to wit. * * *'

And at the beginning of the trial, over the objection of the appellant, this paragraph of respondent's complaint...