Buckeye Buggy Co. v. Montana Stables

• Decision Date: 10 July 1906
• Parties: BUCKEYE BUGGY CO. v. MONTANA STABLES.
• Court: Washington Supreme Court

85 P. 1077

43 Wash. 49

BUCKEYE BUGGY CO. v. MONTANA STABLES.

Supreme Court of Washington

July 10, 1906

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by the Buckeye Buggy Company against the Montana Stables. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

G. M Emory and John F. Murphy, for appellant.

Emmons & Emmons and H. T. Granger, for respondent.

RUDKIN J.

On the 5th day of December, 1902, the defendant executed and delivered to the plaintiff the following written order:

BUCKEYE BUGGY CO., Columbus, Ohio. Seattle, Wash., Dec. 5, 1902. Please ship March 15, 1903, or as soon thereafter as possible, the following work, in accordance with description, etc. in your catalogue, boxed and aboard cars at Columbus, Ohio Routing ALL ORDERS TAKEN SUBJECT TO APPROVAL OF HOME. No agreement or TERMS: $300 cash condition will be recognized unless Balance, $100 a mo. till paid written upon this blank. Our responsibility ceases upon delivery to R. R -------------------------------------------------------------------------------------------------------- How Style Top Track Pole Wheels Axle Trimming Mounting Price Painting Remarks or -------------- Many Shafts Size Band or of each Patent -------------------------------------------------------------------------------------------------------- 1 265 Top Reg. Pole Reg B Reg. Gr. Lea Plain 15 in. Extension Kelly tire. Wants regular whiffle tree Dont want stiff bar brake 1 278 Open ' ' ' ' ' ' ' 1600.00 N. Y. Red Name Montana Stables Body to correspond Phone Main 750 Ice Chest Horn - Lead Bars. -------------------------------------------------------------------------------------------------------- Everything must be Order No. ....... written on this order, THIS ORDER NOT Subject to Countermand as no verbal agreements or promises SIGN HERE (Signed) MONTANA STABLES, INC. will be recognized. By J. W. Coleman, Manager SALESMAN Van Sant

This action was brought to recover the contract price of the two vehicles therein described and of certain extras ordered at the same time. The claim for extras was abandoned at the trial and will not be further considered. The complaint alleged the execution and delivery of the order, that in the month of April, 1903, the two vehicles were shipped and delivered to the defendant, and that no part of the purchase price of $1,600 had been paid, except the sum of $181.25. The amended answer put in issue the allegations of the complaint, except the existence of the corporation the ordering of sundry articles, and the payment of $181.25. The answer also contained an affirmative defense in which it was alleged that the contract between the plaintiff and the defendant was partly in writing and partly oral; that the written part of the contract was as set forth in the above order; and that at the time of the execution of the order, and as a part thereof, it was orally agreed as follows: That the style No. 265 in the written order was to be a brougham for use in the livery business in the city of Seattle which should accommodate four persons with comfort, and was not to be a three-quarter sized brougham, such as is commonly used by physicians and private families; that the brake should not be a stiff bar brake and should not be placed upon the front wheels of the vehicle; that the 15-inch extension should be measured from the edge of the front seat in the middle thereof to the nearest part of the cushion back of the front seat. It was further alleged that it was understood and agreed that the figures '1600' appearing in the order were the totals of the separate sums agreed upon as the purchase price of the two vehicles, and that $900 was the agreed price of the brougham, and $700 the agreed price of the coach. It was further alleged that on or about April 10, 1903, the defendant was informed that the brougham being manufactured by the plaintiff was not according to contract, and the defendant thereupon wired the plaintiff countermanding the order as to the brougham...