Boston Tow Boat Co. v. John J. Sesnon Co.

• Decision Date: 01 August 1911
• Citation: 116 P. 1083,64 Wash. 375
• Parties: BOSTON TOW BOAT CO. v. JOHN J. SESNON CO.
• Court: Washington Supreme Court

116 P. 1083

64 Wash. 375

BOSTON TOW BOAT CO. v. JOHN J. SESNON CO.

Supreme Court of Washington

August 1, 1911

Department 1. Appeal from Superior Court, King County; John F. Main Judge.

Action by the Boston Tow Boat Company against the John J. Sesnon Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Piles &amp Howe and E. C. Hanford, for appellant.

William H. Gorham, for respondent.

DUNBAR C.J.

The appellant, a Massachusetts corporation, in the year 1907, was the owner of the steamship Hyades, but had chartered it to Schubach & Hamilton, a Washington corporation, who operated it on the Alaska run out of the port of Seattle. The respondent company was, in the year 1907, operating at the port of Nome, Alaska, as lighterers. In the year 1906 Schubach & Hamilton made a contract with the respondent, the Sesnon Company, whereby it was agreed that the company should collect all freight charges on freight to be carried by the vessel operated by Schubach & Hamilton to Nome, Alaska, and upon the collection of the same should pay over such freight charges to Schubach & Hamilton forthwith. In the month of September, 1907, Schubach & Hamilton, finding that it was unable to comply with the conditions of the charter, executed and delivered to the Boston Tow Boat Company, appellant, an agreement, whereby Schubach & Hamilton abandoned the Hyades over to the owner, the Boston Tow Boat Company; Schubach & Hamilton agreeing in said agreement to collect and receive in trust the proceeds of the voyage of the Hyades, then about to be begun. After the making of that agreement, the Hyades sailed from Seattle to Nome, and upon her arrival at Nome was lightered by the Sesnon Company; it collecting the amount of freight charges upon the delivery of freight to the various consignees, and turning over to Schubach & Hamilton all freight money collected, less the sum of $4,269.69. This particular voyage took place between the dates of October 3, 1907, and November 4, 1907, which was after the abandonment of the Hyades by Schubach & Hamilton. The action was brought by the appellant against the Sesnon Company for the amount that had not been turned over by the respondent to Schubach & Hamilton. At the trial in the court below, respondent paid over to appellant the sum of $822.89, with interest, leaving the balance now in controversy of $3,446.80, against which respondent sets up certain counterclaims and offsets on account of claims held by it against Schubach & Hamilton. The aggregate sums are agreed upon between the parties, and there is no dispute concerning items; the respondent admitting the withholding of the amount of $3,446.80, and in its affirmative answer claiming set-off to that amount. An amendment to the answer was made, putting in issue the question of the right of the plaintiff to bring the action in this state, for the alleged reason that it was a foreign corporation doing business in the state of Washington, and that at the time of the commencement of the action it had not, and has not since said time, paid its annual license fee to the state of Washington, past due at the time of the commencement of this action.

The court made a finding of fact that, at all times between the 6th day of June, 1908, and the 31st day of October, 1910 both inclusive, the plaintiff was continuously transacting business within the state of Washington, a substantial part of its ordinary business being of a character giving rise to forms of legal obligation; that between said dates it maintained in Seattle, Wash., a representative, in the person of a marine superintendent, whose duties were those of attending to matters relating to the upkeep at Seattle, Wash., of the ocean-going steamships Hyades, Pleiades, and Lyra, at all of said times owned by the plaintiff, maintaining proper crews and equipments, etc. Upon this finding of fact, it was determined by the court that the plaintiff had not complied with the statute in relation to the payment of its fees, and the cause was dismissed. But, in order to settle the whole controversy and prevent another action at some future time, the court also found, in substance, that the defendant had no notice of the abandonment of the Hyades by Schubach & Hamilton, no notice of the contract between Schubach & Hamilton and plaintiff, and no notice that plaintiff had agreed to collect and receive, in trust or...