Bohlke v. Wright, 27591.

• Decision Date: 31 August 1939
• Docket Number: 27591.
• Citation: 200 Wash. 374,93 P.2d 321
• Parties: BOHLKE v. WRIGHT et ux.
• Court: Washington Supreme Court

93 P.2d 321

200 Wash. 374

BOHLKE v. WRIGHT et ux.

No. 27591.

Supreme Court of Washington

August 31, 1939

Department 2.

Action by Lloyd R. Bohlke against Francis B. Wright and Isabel A Wright, husband and wife, doing business under firm name and style of Wright Winery & Distilling Company, to collect an amount alleged to be due under contract to furnish apple peelings and cores. From a judgment for the plaintiff defendants appeal.

Affirmed.

Appeal from Superior Court, Yakima County; Dolph Barnett, judge.

Clark &amp Grady, of Yakima, for appellants.

Stephen E. Chaffee, of Sunnyside, for respondent.

SIMPSON Justice.

This action was instituted to collect an amount alleged to be due plaintiff for the agreed value of apple peelings and cores sold and delivered to defendants.

The complaint alleges that September 24, 1937, plaintiff and defendants entered into a contract whereby plaintiff agreed to sell to defendants and defendants agreed to purchase apple peelings and cores which plaintiff had secured from the Valley Evaporating Company's plant at Prosser Washington, at the price of $2 per ton in the event that the apple peelings were not furnished for the entire season, and with the additional agreement that in the event the peelings were furnished for the season the price would be $2.50 per ton, and that plaintiff complied with the agreement and delivered to defendants 771,614 pounds of peelings and cores.

It was further alleged that on the first day of November, 1937, defendants refused to comply thereafter with the contract between plaintiff and defendants, and refused to accept peelings from plaintiff; that plaintiff was compelled to haul and dump them to his damage in the sum of $120; and that the only amount paid by defendants upon the contract was $166.18.

The defendants answered, denying the allegations of the complaint, and then set up a defense which in effect alleged that the Yakima Fruit Products Company had entered into a written contract with the Valley Evaporating Company under which the Yakima Fruit Company was to receive the skins and cores from the Evaporating Company's plant at Prosser free of charge; that the Yakima Fruit Products Company orally assigned to defendants its right to take and receive the skins and cores from the Prosser plant; that defendants contemplated hauling the same from Prosser to their winery plant at Grandview, Washington; and that defendants were not informed by the Yakima Fruit Products Company that it was to receive the skins and cores from the Prosser plant without any charge being made therefor.

The answer further alleged that September 24, 1937, plaintiff represented to defendants that he had a contract with the Valley Evaporating Company for the purchase from it of apple skins and cores from its Prosser plant for which the Yakima Fruit Products Company had contracted, and plaintiff offered to sell and deliver the same to defendants at Grandview at $2 per ton including hauling charges; that the offer was made to the manager of defendants' Grandview plant, and relying upon these representations the manager of the Grandview plant accepted the offer subject to the approval of defendants; that the defendants' undertaking to pay plaintiff for deliveries of apple peelings at Grandview was conditioned upon plaintiff's having the contract which he represented he had with the Valley Evaporating Company; that plaintiff in fact did not have the contract represented with the Evaporating Company, but merely had an arrangement with that company to the effect he would haul away and dump any cores and peelings which the company wanted hauled away, and that for this service he was to be compensated at the rate of fifty cents per ton; that the defendants believed and relied upon the representations of plaintiff, and would not have entered into any contract with plaintiff if they had known his representations were false; and that therefore defendants should be obligated to pay plaintiff only the reasonable value, cost, and expense of hauling the peelings from Prosser to Grandview, that is, $191.40 less $166.18 already paid, leaving a balance of $25.22.

The case was tried to the court sitting without a jury, and at its termination findings of fact, conclusions of law, and judgment were entered in favor of plaintiff.

Error is assigned in respect to the finding that appellants had contracted unconditionally to purchase waste apple peelings from respondent.

The evidence disclosed that respondent lives at Grandview and owns a truck which he uses for general hauling. Appellants operate a winery at Grandview, and in the process of making wine use apple peelings and cores, which are the by-products of apple dehydrating plants.

Respondent in testifying, among other things, stated that he had a contract with the Valley Evaporating Company to take the peelings and cores from its plant for an indefinite period of time; that he was to have them in consideration of keeping the bins, in which the peelings and cores were deposited, cleaned out each day; that September 24, 1937, he saw Mr. Hafey, the foreman in charge of appellants' winery, and offered to sell to the winery the apple peelings and cores at a price of $2.50 per ton; that he was told by Mr. Hafey that he (Hafey) could not make a contract without the approval of appellant (Mr. Wright).

Respondent further testified that he unloaded some of the apple peelings and cores on September 24 and 25, and was told by Mr. Hafey that he had contacted Mr. Wright and that the winery would take the apple peelings and cores at a price of $2...