Buyken v. Ertner
| Decision Date | 03 May 1949 |
| Docket Number | 30772. |
| Citation | 33 Wn.2d 334,205 P.2d 628 |
| Court | Washington Supreme Court |
| Parties | BUYKEN et al. v. ERTNER et al. |
Department 1
Action by F. E. Buyken and another, partners doing business under the firm name and style of Buyken Machine Works, against A C. Ertner and another to recover balance allegedly due for machine work. Defendants filed a cross-complaint. From a judgment for the plaintiffs, the defendants appeal.
Affirmed.
Appeal from Superior Court, King County; Malcolm Douglas, judge.
Hyland Elvidge & Alvord and John Veblen, all of Seattle, for appellants.
Meier & Murray, of Seattle, for respondents.
Plaintiffs brought suit to recover the balance of an account alleged to be due and owing to them for machine work performed upon certain constituent parts of a quantity of steel wrenches owned by, and in process of manufacture for, the defendants. In answer to the complaint, defendants denied all liability, pleaded affirmatively payment in full, and cross-complained for an alleged amount of overpayment and for damages claimed to have been sustained by them as the result of plaintiffs' poor workmanship on the wrenches. Plaintiffs in their reply denied the affirmative allegations of the answer and cross-complaint. The cause was tried to the court without a jury. The court made findings of fact and conclusions of law, upon which it entered judgment for the plaintiffs in the full amount prayed for and dismissed defendants' cross-complaint with prejudice. Defendants appealed. In their appeal, however, they assign no error and make no attack upon that part of the judgment which dismissed their cross-complaint.
The facts as found by the trial court are as follows: Respondents, F. E. Buyken and George Buyken, were at all times herein mentioned partners engaged in the machine shop business in Seattle, under the firm name of Buyken Machine Works. Respondent F. E. Buyken and one Arthur Larsen, superintendent of Buyken Machine Works, were authorized to, and did, act for the respondents in the matters involved in this action, and they will hereinafter be referred to, respectively, as Buyken and Larsen. At the same time, appellants, A. C. Ertner and J. Frank Thorn, were copartners engaged in a commercial business in Seattle, under the firm name and style of Federal Trading Company. Appellant Ertner was authorized to, and did, act on behalf of the appellants in the matters with which we are here concerned.
In the year 1944 appellants were centering their attention upon the development of a mechanical wrench, known as the 'Ertner Speed Wrench,' which Ertner himself had invented. The device consisted of several parts, viz., a handle, a movable jaw, a hood or casing, and two metal pieces called locks. The handle and movable jaw of this wrench, as then designed, were of cast material.
Having in view the manufacture of the wrench in quantities, appellants in the early part of 1944 placed with the respondents an order for the making of certain dies, to be subsequently used in the manufacture of the hoods and locks. On completion of these dies, they were paid for by the appellants. However, none of the parts of the wrench were manufactured at that time, due to the fact that the device had not been sufficiently developed to make it a success. Appellants thereupon continued their development work and, in the meantime, Ertner had the contrivance patented.
In the month of October, 1945, Ertner approached Buyken with the idea of having respondents produce certain parts for the wrench as then developed. The understanding between the parties, arrived at through oral conversation, was that the handle and movable jaw were to be forged instead of cast, and that the appellants were to supply the forgings upon which respondents were to perform the required work. In the process of production, respondents were to use the dies which they had formerly made and which were the property of the appellants. Buyken at that time also informed Ertner that respondents could produce the requested parts, but that the appellants would be required to pay for any changes made in the dies and for any necessary 'tooling.' Ertner agreed to these terms, although it was not then known exactly what changes would have to be made in the old dies, or what tooling would be required; nor was any price or rate then agreed upon with respect to such additional work, if any were performed. At the same time Buyken also informed Ertner that respondents could not quote a price for the 'production work' until Buyken had seen a sample, and ascertained the quality, of the forging work to be done by the forge company from which appellants were to secure the basic material.
Tooling and production work are two separate and independent processes. Tooling comprehends all special die work, including the manufacture of, and changes in, dies and the making of special jigs, drill jigs, broaches, drills, and other special tools for performing a manufacturing process. The dies and tools, when completed, belong to the person paying for them and may be taken by him to any machine shop he desires for the purpose of performing the process of production. On the other hand, production work comprehends the actual process of manufacturing the article after the tools and dies have been made or furnished and set up in machinery designed for applying power or pressure. Production work includes drilling, broaching, milling, and stamping, but does not include the making or furnishing of special dies and tools for performing the process of manufacture.
In the latter part of November or the early part of December, 1945, Ertner exhibited to Buyken a sample of the forging work to be supplied to respondents. This was not in the form of a model of the wrench, but merely a piece of forged steel, from which the quality of the forging work could be ascertained. On that same occasion, Buyken advised Ertner that he would think over the matter of the price to be charged for the contemplated production work.
In a conversation between Buyken and Ertner on or about December 19, 1945, it was orally agreed between them that respondents would do the production work on certain wrench parts, as follows: (Italics ours.)
Confirming the foregoing oral agreement relative to production work, respondents at the request of Ertner, on December 29, 1945, wrote and mailed to appellants a letter, which reads as follows:
The two agreements hereinabove referred to, one made in October, 1945, relating to tooling, and the other made in December of that year, relating to production work, were expressly found by the court to constitute separate agreements, the subject matter of each being such as might naturally be the subject of a separate agreement between the parties.
Thereafter, appellants purchased from various wholesale concerns supplies of forgings, strip steel, and sheet steel, and these supplies were delivered to the respondents during the summer and fall of 1946, for use by them in the production work. During that same period respondents commenced and completed the work of milling the handles of the wrenches, squaring the jaws, cutting the teeth therein, drilling and broaching the jaws, and shearing, stamping, and forming the hoods and locks. As the work was completed in lots, the product was delivered to appellants.
It appears that the forged wrench handles which were furnished by appellants were about one-eighth inch greater in width than were the handles of the original cast wrench for which dies had been manufactured by respondents in 1944. In addition, the old dies for stamping the hoods were peculiarly adaptable to material of a different gauge than that of the material supplied by appellants under the written agreement. This necessitated a rebuilding of the old dies and the manufacture of new drills, drill jigs, and broaches. The necessary changes of dies and manufacture of new tools were accomplished by respondents at the oral request and direction of the appellants.
It further appears that many other tooling changes later became necessary in order to remedy imperfect assembly 'tolerances,' caused in part by the lack of uniformity in width and thickness of the forged wrench handles, and in part by insufficient preliminary engineering on the part of Ertner prior to the commencement of production. These further changes were likewise accomplished by respondents at the request and direction of the appellants.
During the course of these progressive changes in dies and tools Larsen, the superintendent for respondents, advised Ertner that the tooling was running into a large sum of money, whereupon Ertner stated that 'he was going to pay for it' and instructed Larsen to proceed with...
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...court) and the 'collateral contract' (relied upon in the majority opinion) exceptions to the parol evidence rule (Buyken v. Ertner, 1949, 33 Wash.2d 334, 205 P.2d 628; Sears, Roebuck & Co. v. Nicholas, 1939, 2 Wash.2d 128, 97 P.2d 633; 20 Am.Jur., Evidence, 988, 992, §§ 1135, 1140, annotati......
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