Catarau v. Sunde & D'Evers Co.

• Decision Date: 16 December 1936
• Docket Number: 26234.
• Citation: 63 P.2d 365,188 Wash. 592
• Court: Washington Supreme Court
• Parties: CATARAU v. SUNDE & D'EVERS CO. et al.

63 P.2d 365

188 Wash. 592

CATARAU v. SUNDE & D'EVERS CO. et al.

No. 26234.

Supreme Court of Washington

December 16, 1936

Department 1.

Appeal from Superior Court, King County; Howard M. Findley, Judge.

Action by J. W. Catarau, doing business as the Marine Appliance Manufacturing Company, against the Sunde & d'Evers Company and another. From a judgment dismissing the action the plaintiff appeals.

Affirmed.

C. R Hovey and Edward J. Burns, both of Seattle, for appellant.

Bayley & Croson, of Seattle, for respondents.

STEINERT Justice.

This is an action for damages for the alleged wrongful issuance and circulation of false credit information concerning plaintiff and his business. Trial Before the court, sitting with a jury, resulted in a verdict for defendants. Following the verdict, the court entered judgment dismissing the action. Plaintiff has appealed.

For some time prior to, and during, the year 1933, appellant operating under the name of Pacific Fishing Tools Manufacturing Company, was engaged in the business of manufacturing various kinds of fishing tackle. He had perfected, and obtained patents on, a number of inventions, most of them relating to fishing apparatus of one kind or another. He had also invented and patented a life preserver having a novel and ingenious fastener. Some time in January or February of 1934, the name of the business was changed to Marine Appliance Manufacturing Company. This change, it is claimed by appellant, was made because of his poor credit rating at that time, brought about by the false report emanating from respondents.

Respondent Sunde & d'Evers is a corporation engaged in the business of ship chandler and distributor of various kinds of marine supplies, including fishing apparatus. Respondent Seattle Association of Credit Men is a nonprofit corporation owned and controlled by a namber of wholesalers, manufacturers, and bankers of Seattle. Its purposes and objects are to furnish credit information to its members, collect slow and doubtful accounts, aid in the rehabilitation of failing debtors, and liquidate insolvent concerns. Sunde & d'Evers is a stockholding member of the association.

This lawsuit is the outgrowth of certain commercial transactions had between appellant and respondent Sunde & d'Evers.

Prior to August, 1933, appellant had, from time to time, delivered to Sunde & d'Evers various kinds of fishing apparatus which had been devised by him. According to appellant's contention, supported by his testimony, these deliveries were made upon terms of outright sale, and the amount owing for them by Sunde & d'Evers, in August, 1933, was $132. The contention of Sunde & d'Evers, as disclosed by its evidence, was that these deliveries were made on consignment and that the merchandise so delivered was either to be paid or, else, accounted for after the consignee's annual inventory had been taken. According to its further contention and evidence, Sunde & d'Evers sold a part of this merchandise, for which appellant was entitled to $75.35, and that amount, less a deduction of $33.90, hereinafter referred to, was remitted to appellant in the early part of 1934.

In the meantime, during the month of August, 1933, appellant had purchased outright from Sunde & d'Evers a quantity of merchandise amounting to $33.90. Deliveries thereof were made in two lots. On the first of the following month, a bill for the entire purchase was sent to appellant, but no attention was paid thereto by him. Bills were also sent in October and November, respectively, and still no payment was made. Between these dates, the company's collector called at appellant's place of business, but without success.

On December 5, 1933, Sunde & d'Evers wrote to appellant as follows:

'Your account for $33.90 is now overdue and as we are members of the Seattle Association of Credit Men, it is necessary for us to report all past due accounts to them. Of course you know such a report will affect your credit, and so we are reluctant to do this.

'Please let us have your check and such action will be unnecessary.'

Appellant testified that, on receipt of this letter, he telephoned the manager of Sunde & d'Evers and was told by him not to worry about it, that everything would be all right. This was denied by the manager.

On December 19, 1933, a stereotyped form of letter, purporting to come from Seattle Association of Credit Men, was received by appellant. In that letter it was recited, among other things, that appellant's account with Sunde & d'Evers in the sum of $33.90 had been reported to the association as overdue and unpaid; that appellant's credit would be best preserved by strict adherence to sales terms; that the members of the association were entitled, upon call, to have information regarding appellant's obligations to other members; and that, if such call were presently made, the association would, of necessity, have to show that appellant was owing the above overdue amount.

The only evidence regarding the authorship of this letter is that it was sent, not by the Seattle Association of Credit Men, but by Sunde & d'Evers, from a stock pad supplied to it by its corespondent.

Appellant's complaint is predicated upon the contentions and charges that, by reason of the condition of the mutual accounts, as testified to by him, he did not owe Sunde & d'Evers anything; that, nevertheless, Sunde & d'Evers, by its letter of December 5, had threatened to ruin his credit in the community by having his name placed on a list kept by Seattle Association of Credit Men of individuals who failed and refused to pay their bills, and that the association had followed that procedure; that, in consequence of the report so made and listed, appellant had been unable to get credit, had been placed on the C. O. D. list of a number of firms, and had lost the benefit of an investment of $25,000, which a third party had agreed to contribute to his business, to be used for the manufacture and sale of his patented life preservers. Appellant sought recovery in the sum of $67,000.

The evidence was in conflict throughout. At the conclusion of the testimony, the court withdrew from the jury the issues respecting certain items of damage. As to the remainder, the jury found for the respondents.

Appellant's first assignment of error is that he was compelled to try his case Before a biased jury, in that two jurors who were subject to challenge for cause were permitted to remain on the panel after his peremptory challenges had all been exhausted.

Rem.Rev.Stat. § 330(2), on which appellant relies, provides that a juror may be challenged for implied bias upon the ground that he stands in the relation of an employee or of a member of the family of the adverse party.

Among the first twelve jurors drawn was a lady, juror No. 10, whose husband was the treasurer of a corporation which held stock in Seattle Association of Credit Men. Another juror, No. 12, was employed as a checker for a concern that also held stock in the association.

Juror No. 10, after examination, was passed for cause by both sides. Juror No. 12, after examination, was challenged for cause by appellant, on the ground that he was 'an employee of a party to the suit.' The challenge was denied by the court, and, later, appellant challenged the juror peremptorily. Thereafter, appellant exercised his two remaining peremptory challenges by excusing two other jurors who had not been challenged for cause. One of these, juror No. 7, was replaced by a juror who was the manager of an incorporated lumber-selling agency whose stockholders were a group of milling companies which sold their products to wholesalers. It does not appear that either the lumber agency or any of the milling companies were members of the Seattle Association of Credit Men. The last-mentioned juror, No. 7, was duly passed...