Carlisle Packing Co. v. Deming

• Decision Date: 17 March 1911
• Parties: CARLISLE PACKING CO. v. DEMING et al.
• Court: Washington Supreme Court

114 P. 172

62 Wash. 455

CARLISLE PACKING CO. v. DEMING et al.

Supreme Court of Washington

March 17, 1911

Department 1. Appeal from Superior Court, Whatcom County; Ed. E. Hardin Judge.

Action by the Carlisle Packing Company against E. B. Deming and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Kerr & McCord, for appellants.

Fairchild & Bruce and Dorr & Hadley, for respondent.

MOUNT J.

This action was commenced by the plaintiff to recover the sum of $12,955, upon a claim growing out of an alleged breach of contract for the purchase of certain canned salmon of the pack of 1907. The essential allegations of the complaint are as follows: 'That on or about the ___ day of _____, 1907 the defendant E. B. Deming, acting for himself and his codefendants, entered into a contract with this plaintiff for the purchase of all of the salmon fish packed and to be packed by this plaintiff for the season of 1907. That said agreement was that the said defendants would purchase from this plaintiff, who would sell to said defendants, all of the several grades and varieties of salmon to be packed by plaintiff during the season of 1907, and pay plaintiff for each grade of salmon the 'opening price' thereof, of each grade, kind, and size, and make payments as the same were shipped and within 10 days from the date of delivery with an allowance of 1 1/2 per cent. for cash discount and 5 per cent. brokerage. Deliveries were to be made to some railway terminal point at the expense of this plaintiff, and the said defendants were to furnish shipping instructions on or before February 1, 1908, or take whatever portion remained unmoved at that time, and pay for the same warehousing it if necessary, and all expenses of such disposition, and shipping instructions were to be given to this plaintiff at and before the time for delivery. That pursuant to said contract this plaintiff delivered to the said defendants all of its pack, and the said defendants took said pack and paid for same, except as hereinafter set forth. That the 'opening prices' and sum which the defendants agreed to pay for such pack were as follows: Sockeye talls, $1.65; sockeye flats, $1.80; pink talls, 80c.; pink flats, 90c.; pink halves, 60c. That the words 'talls' and 'flats' have reference to each twelve cans of one pound capacity or a half pound capacity. That each case of salmon contained four dozen cans or forty-eight cans in all, of one pound capacity. That amongst others of the pack sold to the defendants by said plaintiff were 10,903 pink flats and the opening value and price of which was 90c. per dozen, or $3.60 per case, and at the direction and upon the instruction of the said defendants said salmon were delivered between the 4th day of October, 1907, and January 1, 1908, and the price so agreed to be paid became due and payable to plaintiff. That said defendants, disregarding their contract aforesaid, after the receipt of the property as aforesaid, refused to pay this plaintiff for the said 10,903 cases of pink flats and abandoned the said property to this plaintiff, after making it subject to charges for warehousing and insurance placed by the said defendants, and this plaintiff, in order to save itself, was required to take said salmon and to sell the same upon a depreciated market and at a less price than the defendants had agreed to pay, and was required to pay the insurance and warehouse charges incurred against said property. That said property was sold to said defendants at the sum of $36,786.20, and plaintiff was required to retake and sell the same for a total sum of $30,001.75, whereby it lost $6,784.45 on said salmon, and it lost on account of moneys paid out, storage, and insurance $1,706.84 and on commissions the sum of $1,530.68, and it was deprived of the use of its money and was required to pay interest on account thereof amounting to $2,146.16. That because of the acts and doings of the said defendants and their failure to keep and perform their contract as aforesaid this plaintiff has suffered loss and damage in the sum of $12,955.04, with interest thereon since January 1, 1908.' The defendants joined in an answer denying all of the allegations of the complaint. The cause was tried to a jury, and a verdict was rendered against all of the defendants for $12,700, and on June 13, 1910, a judgment was entered in favor of the plaintiff for that sum. This appeal is prosecuted by defendants from that judgment.

It was contended by the plaintiff at the trial that, in the spring of 1907, the defendants agreed to purchase all of the canned salmon to be packed by the plaintiff during the season of 1907, at the 'opening price' for such salmon for that season, from which price the defendants were to be allowed to deduct 5 per cent. for commissions and a discount of 1 1/2 per cent., and that the salmon which was unsold by the defendants on February 1, 1908, should be taken over by the defendants and paid for at the opening price, less the commission and discount above stated; that defendants purchased all of plaintiff's salmon pack of that season excepting 10,920 cases of four dozen cans each; that this salmon, known as 'pink flats,' was abandoned to the plaintiff after it had been subject to warehouse charges and insurance created by defendants; that on February 5, 1908, the defendants refused to pay for or take the said salmon; and that plaintiff, in order to save itself, was required to pay the charges against the salmon and to sell it upon a depreciated market at less than the defendants had agreed to pay. The defendant Deming denied that any such contract was made, but testified that he made an agreement with the plaintiff for handling the salmon of the plaintiff for the year 1907, by which agreement the Deming-Gould Company was to sell the salmon upon a purely brokerage basis; and that there was no agreement to take over the salmon for that season; but that it was agreed that upon the said date the Deming-Gould Company would take over at the then market price all of such salmon remaining unsold; and that on February 5, 1908, Mr. Deming offered to take over all the salmon in dispute at the market price on that day, which was 80 cents per dozen cans. It is conceded in the case that the 'opening price' of the class of salmon in dispute was 90 cents per dozen, and that Mr. Deming took over and paid for all of plaintiff's pack for that season except the part in dispute, and paid for the same at the opening price. It is also conceded that Mr. Deming was the managing agent at Bellingham of the Deming-Gould Company of Chicago, and the vice president of the Pacific American Fisheries, and had authority to make any kind of contracts for these companies; that these companies were large dealers in canned salmon; and that Mr. Deming arbitrarily fixed the opening prices of such salmon. Other facts necessary to an understanding of the points discussed will be stated in the consideration thereof.

The appellants argue that the court erred in refusing to discharge the jury and try the case as an equity case for an accounting. In the progress of the case it appeared that the salmon in dispute had been stored in a warehouse controlled by the defendant Deming, and that upon Mr. Deming's refusal to take the fish and to pay the opening price, 90 cents per dozen, the plaintiff,...