Bane v. Dow

• Decision Date: 27 July 1914
• Docket Number: 11898.
• Citation: 142 P. 23,80 Wash. 631
• Court: Washington Supreme Court
• Parties: BANE et al. v. DOW et al.

142 P. 23

80 Wash. 631

BANE et al. v. DOW et al.

No. 11898.

Supreme Court of Washington

July 27, 1914

Department 2. Cross-Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by William L. Bane and others against Frank P. Dow and another. From the judgment defendants appeal, and plaintiffs bring a cross-appeal. Affirmed.

Kerr &amp McCord, of Seattle, for appellants.

Fred W Catlett, of Cambridge, Mass., and Emmons & Emmons, of Boston Mass., for respondents.

MORRIS J.

The parties to this action are custom house brokers; respondents doing business at New York City and appellants at Seattle. In February, 1903, respondents, claiming to control certain importing business of New York merchants passing through the port of Seattle, wrote to Frank P. Dow, who was then doing business as an individual, suggesting they would obtain this business for Dow upon consideration of an equal division of fees. Dow accepted this offer, and respondents then informed him that the business to be turned over was that of Morimura Bros. As fixing the terms of the contract bwtween them, this letter stated:

'We expect you to divide with us on entry and any profits that may accrue through attending to the cartage.'

A few days thereafter Dow received a letter from Morimura Bros., suggesting the fees to be paid as $3 per invoice for entry, 15 cents per case for cartage, and 6 cents per case for forwarding. Dow accepted these terms, and under them undertook the business, remitting to respondents, from time to time, one-half of the entry charge and one-half of the profits accruing from the cartage, but making no reference to the forwarding fee of 6 cents per case. On January 1, 1906, Dow incorporated his business as the Frank P. Dow Company, and the corporation from that time continued the same relation with respondents and Morimura Bros. without change until April, 1908, when, Morimura Bros. making some objections to the amount being charged for cartage, a new arrangement was entered into, and the fee was fixed at 25 cents per case for each case actually carted, the other fees remaining the same. Through this correspondence respondents learned for the first time that Morimura Bros. were paying a forwarding fee of 6 cents per case, and demanded an accounting of this fee, and one-half of the profits on the new cartage fee after deducting the actual cost appellants were put to in transporting the cases from the appraiser's store. Appellants refusing to recognize any claim of respondents to share in the forwarding fee, this action was brought. The lower court held that respondents were entitled to an equal share in the profits on the cartage, and fixed the profits at 13 7/10 cents per case, but denied them any share in the forwarding fee of 6 cents per case, upon the ground that the contract between appellants and respondents did not contemplate a division of the forwarding fee. The court then called for additional evidence to enable it to enter a decree under the rule it had announced. This evidence was furnished, and a decree was then entered awarding respondents $730.77, with interest from date as against Frank P. Dow individually, and $3,575.74 as against the corporation. From this decree all parties appeal.

While making numerous assignments, appellants' contentions may be classified as error on the part of the lower court in holding that the contract did not terminate with the formation of the corporation in January, 1906, that an erroneous basis was adopted in computing the profits on the cartage, and that error was committed in arriving at the amount awarded respondents. Up to the trial of this action we fail to discover any serious contention that the original contract, so far as it affected a division between the parties, was not stil in force. Both parties recognized that the corporation succeeded to the interests of Frank P. Dow under the original contract, and under this assumption the corporation continued to transact the business and account to respondents as Frank P. Dow had previously done. Under these circumstances we find no merit in the contention that for all purposes the corporation was not the successor in interest of Frank P. Dow, and should not now be held to the terms of the original contract.

The main contention under the second assignment is that the lower court used a wrong basis in finding that the cost of cartage was 1.3 cents per case, and that a division of the profits on this item should be made on the basis of 13.7 cents per case appellants contending that the correct rule would permit appellants to deduct from the cost of the cartage the proportion of the entire expense of conducting the business of Frank P. Dow Company that the business of Morimura Bros. bears to the entire business of Frank P. Dow Company. It was established by the evidence that 1.3 cents per case for cartage represents the actual cost of the teaming. It is further established that in contracts of a like nature a general custom exists among customhouse brokers to...