Clark v. Gerlinger Motorcar Co.

• Citation: 100 Wash. 1,170 P. 142
• Decision Date: 31 January 1918
• Docket Number: 14011.
• Parties: CLARK v. GERLINGER MOTORCAR CO.
• Court: Washington Supreme Court

170 P. 142

100 Wash. 1

CLARK v. GERLINGER MOTORCAR CO.

No. 14011.

Supreme Court of Washington

January 31, 1918

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by E. T. Clark against the Gerlinger Motorcar Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions.

M. W Seitz, of Portland, Or., and Earle & Steinert, of Seattle for appellant.

E. L Skeel and W. M. Whitney, both of Seattle for respondent.

FULLERTON J.

On September 12, 1912, the appellant, Gerlinger Motorcar Company, of Portland, Or., as the Pacific Coast Selling agent of the Warren Motorcar Company, of Detroit, Mich., entered into a contract with the plaintiff, E. T. Clark, of Seattle, Wash., by which it appointed him agent or subdealer for certain counties in the state of Washington. The contract provided, among other things, that it was to run for a period of one year; that the respondent should use his best endeavors to sell the cars of the Warren Motorcar Company in the territory allotted to him; that he should provide ample facilities for proper handling, repairing, and adjusting at reasonable prices cars sold within his territory; and that he should keep on hand in good condition for exhibition and demonstration at least one model of the manufacturer's latest model cars. It was further provided that:

Deliveries to the respondent should be made 'when the production will permit, subject, however, to the prior order of other subdealers, and delays occurring by reason of strikes and floods, fire, failure of contractors to deliver parts to the manufacturer, and other cause beyond the control of the manufacturer, whether occurring in the plants of the manufacturer or in the concerns from which it purchases parts.'

At the time of the execution of the contract the respondent deposited with the appellant the sum of $700, of which the sum of $300 was to be applied on the purchase price of three cars, an order for which was given at that time, and the balance of $400 was to be retained as a guaranty for the faithful performance of the contract by the respondent. The orders given for the three cars provided in terms that delivery should be made 'as soon as possible,' and these orders were at once forwarded to the manufacturer with a like request. No cars were ever delivered to the respondent under the contract, because of the default, as the trial court found, of the manufacturer. The respondent in the meantime, however, had rented and fitted up a building in preparation for the receipt of cars, had devoted considerable time to such preparations, and had expended other sums in traveling over his district in preparation for his work.

When the respondent found that the contract could not be carried out, he was able to save himself from loss on account of the rental of the building by subletting it, but suffered a loss on account of time expended and money paid...