Charles Passow & Sons v. Kirkwood Distillery Co.

• Decision Date: 15 July 1909
• Citation: 54 Wash. 196,103 P. 34
• Court: Washington Supreme Court
• Parties: CHARLES PASSOW & SONS v. KIRKWOOD DISTILLERY CO.

103 P. 34

54 Wash. 196

CHARLES PASSOW & SONS v. KIRKWOOD DISTILLERY CO.

Supreme Court of Washington

July 15, 1909

Department 2. Appeal from Superior Court, Spokane County; D. C. Carey Judge.

Action by Charles Passow & Sons against the Kirkwood Distillery Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Cohn, Delameter & Blake and Belden & Losey, for appellant.

Samuel R. Stern, for respondents.

RUDKIN C.J.

This action was instituted to recover the value or the contract price of certain goods consigned by the plaintiff to the defendant. The plaintiff had judgment in accordance with the prayer of its complaint, and the defendant has appealed.

Inasmuch as the principal assignments of error are based on the rulings of the court admitting or excluding testimony under the written contract between the parties, we deem it necessary to set the contract forth at length in this opinion: 'This indenture, made and entered into this 1st day of February, A. D. 1907, by and between Louis A. Passow and Henry E. Passow of Chicago, county of Cook, state of Illinois, parties of the first part, and the Kirkwood Distillery Co., a corporation doing business at Spokane county of Spokane, state of Washington, parties of the second part, witnesseth:

'That the said parties of the first part shall send and forward to the said parties of the second part at Spokane, Wash., to be received on consignment by the parties of the second part, such saloon fixtures, billiard and pool tables and other goods manufactured by the party of the first part as the said parties of the first part shall see proper. The party of the second part is to receive for their compensation for their services in selling and disposing of such goods as may be forwarded and consigned to them, under the terms of this agreement, the excess of the amount which shall be received for such goods as sold by them over and above the prices fixed by the said parties of the first part, in forwarding and consigning goods as aforesaid.

'It is further understood and agreed that the business shall be carried on by the said parties of the second part, under the name of the said first parties and that all sales of goods made by the second parties shall be made in the name of the first parties, and that the title to all goods so forwarded and consigned to the second parties by the first parties, shall be and remain in said first parties' name.

'It is further understood and agreed that the authority of the said second parties shall be and is hereby limited to that of mere sales agent of and for the first parties in selling the aforesaid goods, and that the said second parties shall have no authority whatever to bind said first parties as such sales agent and have no authority to contract or incur any indebtedness or obligation of any kind whatever of the said first parties.

'It is further agreed that the second parties shall at all times keep at his own expense all goods in their possession which may be forwarded and consigned to them under this contract insured in their own name and for the benefit of the first parties in some reliable, solvent insurance company or companies to be approved by the said first parties in an amount equal at least to the price fixed aforesaid by the first parties and shall deliver all policies of insurance upon said goods to the first parties immediately upon receiving same.

'It is further understood and agreed that the said parties of the second part shall pay all freight charges upon said goods so consigned to them and storage thereon, if any, and all rents which may occur for the use of the rooms in carrying on the business, and other expenses of every kind, name and description incurred on the account of or in connection with the conduct of the business.

'It is further mutually understood, covenanted and agreed by and between the parties hereto that if at any time any of the said goods as aforesaid consigned to the parties of the second part by the parties of the first part shall be seized upon attachment levy or other process or in any manner taken possession of or claimed by any officer or person claiming the same in hostility to the rights and title of the parties of the first part, then and in that case the parties of the first part shall at its option have the right to take and demand immediate possession as against the parties of the second part, and any and all persons whomsoever.

'It is further agreed that no goods shall be sold by the second parties at prices less than that fixed by the first parties in consigning such goods and that in all cases where sales are made on credit, at least one-third of the purchase price shall be paid by the purchaser in cash at the time of making sale, and the title of all goods sold on credit shall be and remain in the said first parties until fully paid for by the purchaser, and that a conditional sale instrument reserving title in the said first parties purchasing the goods and by the second parties thereto, which conditional sale shall state the terms and conditions of the sale and shall be filed in the office of the county auditor or recorder, as the case may be, in which the property is situated as prescribed by the laws of the state (if any such provision exists therein), in which the property may be situated, which conditional sale contract shall provide that the balance of the purchase price of goods sold shall be paid in at least ten equal monthly payments.

'It is further understood and agreed that where the parties of the second part elect to sell on time any of the goods or chattels of the first parties and receiving less than one-third...