Carstens v. Nut House

• Citation: 96 Wash. 50,164 P. 770
• Decision Date: 30 April 1917
• Docket Number: 13677.
• Parties: CARSTENS et al. v. NUT HOUSE.
• Court: United States State Supreme Court of Washington

164 P. 770

96 Wash. 50

CARSTENS et al. v. NUT HOUSE.

No. 13677.

Supreme Court of Washington

April 30, 1917

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Thomas Carstens and another, copartners under the firm name and style of the Pacific Oil Mills, against the Nut House. From a judgment for defendant, plaintiff's appeal. Affirmed.

Halverstadt & Clarke, of Seattle, for appellants.

Hastings & Stedman and Ewing D. Colvin, all of Seattle, for respondent.

PARKER J.

The plaintiffs, Thomas Carstens and Herman Meyer, copartners doing business under the firm name of Pacific Oil Mills, and successors in interest by assignment of Pacific Oil Mills, a corporation, commenced this action in the superior court for King county seeking recovery of $4,015 claimed as the purchase price of peanuts sold by that corporation to the defendant, the Nut House, a corporation, during the months of November and December, 1913, and the month of January, 1914. It is conceded by defendant that peanuts of that total value were so sold to it, and that the claim therefor was assigned to the plaintiffs by the Pacific Oil Mills, a corporation, before the commencement of this action. The defendant alleges that before such assignment was made it earned the sum of $7,940 as commissions in selling peanuts for Pacific Oil Mills in Chicago and New York in pursuance of a commission contract entered into between it and that corporation, which earned commissions the defendant alleges are unpaid and seeks to offset the same against the claim of the plaintiffs here sued upon. So the real controversy was, and here is, over the commission claim of the defendant. The trial in the superior court sitting with a jury resulted in a verdict in favor of the defendant to the effect that it is entitled to have its commission claim offset against the claim of the plaintiffs, and that such commission claim exceeds the claim of the plaintiffs. Judgment was accordingly entered that plaintiffs recover nothing and that the defendant recover from the plaintiffs its costs and disburesements incurred in this action. From this judgment the plaintiffs have appealed to this court.

Pacific Oil Mills was a corporation engaged in the importation and wholesale of nuts in the city of Seattle at all times here in question prior to the assignment of its claim against respondent to appellants, who thereafter did business as copartners under the same name. Respondent was at all times here involved engaged in the nut business in Seattle, but on a much smaller scale than that of appellants and their predecessor, Pacific Oil Mills. While respondent was much the smaller concern of the two, it apparently had superior selling facilities and advantages of which Pacific Oil Mills desired to avail itself.

The principal contentions here made by appellants have to do with the sufficiency of the evidence to sustain the verdict and judgment, which questions were presented to the trial court by motions timely made therein. It is insisted in that behalf that there was not sufficient proof of the making of the commission contract between respondent and Pacific Oil Mills. The fact of the making and also the terms of that contract seem to us to be rendered quite certain by the testimony of the respondent's president, if he is to be believed, the furnishing of samples by Pacific Oil Mills to respondent, and certain correspondence introduced in evidence. The contract so appearing contemplated the sale of peanuts by respondent for the Pacific Oil Mills in Eastern cities and that respondent should have as its compensation for making such sales an amount equal to the excess over six cents per pound. It seems quite clear to us that the evidence fully warrants the conclusion as evidently reached by the jury that this contract was actually entered into and that its terms were as we have indicated. We are of the opinion that there was no failure of proof so far as this branch of the case is concerned.

It is contended that there was a failure of proof of the making of sales under the commission contract by respondent. This contention seems to be rested largely upon the fact that the sales were made by respondent's representatives in its own name instead of the name of Pacific Oil Mills. The making of sales in this manner without disclosing the name of Pacific Oil Mills as principal was assented to by it upon being fully advised of the sales being so made. It actually made shipments in accordance with some of these sales and received the whole of the proceeds therefrom, the shipments being made by Pacific Oil Mills in the name of respondent, and remittances in payment thereof being immediately turned over to Pacific Oil Mills when received. There was evidence pointing to a special reason for the making of sales by respondent in this manner without disclosing to the purchasers the principal for whom it was acting and that this manner of making the sales would have worked to the benefit of Pacific Oil Mills in increasing the quantity of sales had it furnished the goods as agreed upon by it in the commission contract. Not only did that corporation know of the reason for the sales being so made but evinced a ready willingness to profit thereby in so far as it saw fit, or was able, to furnish the goods in consummation of the sales. The conclusion that respondent was in fact at all times acting for Pacific Oil Mills and not for itself is amply supported by the evidence. This, we think renders it plain that the Pacific Oil Mills,...