Bayers v. Barry

• Decision Date: 24 January 1921
• Docket Number: 16071.
• Citation: Bayers v. Barry, 114 Wash. 252, 194 P. 993 (Wash. 1921)
• Court: Washington Supreme Court
• Parties: BAYERS v. BARRY et al.

194 P. 993

114 Wash. 252

BAYERS v. BARRY et al.

No. 16071.

Supreme Court of Washington

January 24, 1921

Department 1.

Appeal from Superior Court, King County; John S. Jurey, Judge.

Action by H. G. Bayers against A. E. Barry and another. Judgment for plaintiff, and defendants appeal. Affirmed.

p>Page Kerr & McCord and Stephen V Carey, all of Seattle, for appellants.

James R. Chambers, of Seattle, for respondent.

BRIDGES J.

The respondent, Bayers, during the year 1919, was, and for many years prior thereto had been, a resident of Juneau, Alaska. Much of his time had been spent in the fishing industry. The appellants, Barry and Groll, were fish cannery men, residing in the state of Washington. Prior to February, 1919, the respondent had made certain preparations for the building and operation of a fish cannery at Douglas, Alaska. He had made arrangements for the lease of a suitable wharf upon which the cannery might be built and operated, and he had a boat and large scow suitable for the fishing industry, and he also owned certain fish trap locations, which had not been improved. He had made other tentative fishing arrangements. He found himself unable to carry out his cannery plans for want of sufficient funds, and in February of 1919 he came to Seattle for the purpose of interesting some person in his project. Through a mutual friend he met the appellants in Seattle, and on various occasions conferred with them concerning his proposition. On the 20th of February he, as the party of the first part, and appellants, as parties of the second part, executed a written instrument as follows:

'Party of the first part hereto agrees to enter into a corporation for the operation of a cannery at Douglas Alaska, to be known as the Douglas Packing Company, and further agrees to transfer a certain lease on building and wharfs at Douglas, Alaska, two trap locations one boat in good running order, named the Electro, and one scow in good condition, and in payment for such equipment and lease is to receive one-third of the issued capital stock of said company.

'Parties of the second part agree to furnish the necessary machinery, and the necessary money to install the machinery, and start the operation of the packing company at the location indicated, for which machinery and money said second parties are to receive too-thirds of the capital stock of the company, one-third to be held for the San Juan Canning Company, a corporation of Friday Harbor, Wash., the other third to be held by said second party.

'The corporation is to have a board of three trustees, of which board the contracting parties are to be the active members.'

Respondent contends that, at or about the time of the making of this written contract, the appellants authorized him to return at once to Alaska and obtain a lease upon the Douglas wharf, and get the wharf ready to receive the machinery, which was to be shipped thence by the appellants from their cannery at Friday Harbor, and that he should also engage fishing boats and fishing crews for the coming fishing season, and generally to get things in order so that the cannery might be operated without delay. Respondent further contends that the appellants agreed to pay all of the expenses in connection with the matters just recited, and that they requested him to make these various repairs and preparations out of his own money, but on their account, and that within a very short time they would reimburse him and place all necessary moneys to his credit. The respondent further contends that in compliance with this arrangement he at once returned to Alaska, and expended various sums of money in repairing the Douglas wharf and putting it in condition to receive the canning machinery, and in obtaining and repairing various fishing boats belonging to fishermen, and in other ways, and in this manner he had spent all of his own means for the account of the appellants, in excess of $6,000, and that after these expenditures had been made the appellants refused to reimburse him therefor. He further contends that he was damaged in the sum of $1,500 on account of loss of his own time in making preparations to carry out the agreement which he alleges was entered into with the appellants.

The appellants, both in pleading and in testimony, deny substantially all of the material allegations of the complaint and of respondent's testimony, except they admit that the written contract had been entered into. There was a trial before a jury, which returned a verdict in the sum of $6,272.31. The trial court informed the jury that the respondent was not entitled to recover anything for his services and that feature was taken from the jury. Judgment was entered on the verdict, and after a motion for new trial was denied, the defendants appealed to this court, where they assign many errors, which we will notice in the order of their argument.

1. The respondent, while on the witness stand, was undertaking to give the various conversations he had with the appellants concerning his fishing proposition, and stated that they had asked him if he would not, for the time being, expend his own money on their account, and that, in this connection, he told them he could not afford to take any chances, and that he had a 'wife and six small children to maintain,' and that he would go up there and do the best he could until they sent him money. Appellants objected to the witness testifying to the fact that he had a wife and children, for the reason that it was immaterial, and had a tendency to prejudice the jury in his favor. We cannot see any merit in this claim of error. The respondent was but repeating a conversation which he claimed to have had with the appellants concerning this business proposition, and was merely explaining to them that he would have some difficulty in advancing money on their account, because he had his wife and children to support. What he said in this regard was but a part of the conversation which he was trying to detail, and as such was admissible.

2. The respondent offered to prove that he had spent much of his time in complying with the requests of the appellants, and that because they had refused to carry out their portion of the agreement his time was lost, which he valued at $1,500. The appellants objected to this class of testimony, contending that there could not be any recovery in this action for loss of time, and citing two decisions from this court. The noon hour having arrived, the court said he would examine the decisions before court reconvened. It appears, however, that the court neglected to examine the decisions, and the testimony objected to went before the jury. Later in the afternoon, the court read the decisions cited to him, and then announced that he thought his ruling had been wrong, and that he would strike the testimony with reference to the $1,500. He then called the jury in and specifically instructed it that he had changed his ruling in this regard, and withdrew from its consideration this $1,500 item, and told the jury not to consider it. The appellants, however, now contend that this testimony had been permitted to go to the jury through no fault of theirs, and that it was very prejudicial to them, and by receiving the testimony the damage was done, and that the court could not correct the mistake he had made by admonishing the jury.

Certainly there cannot be any such error in this regard as to require the case to be reversed. In the haste and heat of the trial of cases, it is to be expected that attorneys will at times say objectionable things, and the court make erroneous rulings. If all these errors are to be considered prejudicial, and that the court is powerless to cure or correct them, then we will be constantly reversing cases, and there will be no end to lawsuits. We, as well as all other courts, have always held that errors of this character may be corrected by proper admonitions or instructions from the court to the jury, unless it is affirmatively shown, or we are otherwise convinced, that the admonitions and instructions have failed in their purpose. It seems unnecessary to further discuss the matter than to cite some of our decisions in support of the position we are taking: State v. Boyce, 24 Wash. 514, 64 P. 719; State v. Hawkins, 27 Wash. 375, 67 P. 814; Bunck v. McAulay, 84 Wash. 473, 147 P. 33; Yakima Valley, etc., v. McAllister, 37 Wash. 566, 79 P. 1119, 1 L. R. A. (N. S.) 1075, 107 Am. St. Rep. 823; Smith v. Buckman, 22 Wash. 299, 61 P. 31.

3. After the respondent had returned to Alaska, he procured a lease to the wharf...