Davidson v. Mackall-Paine Veneer Co.

• Citation: 271 P. 878,149 Wash. 685
• Decision Date: 27 November 1928
• Docket Number: 21392.
• Parties: DAVIDSON v. MACKALL-PAINE VENEER CO.
• Court: United States State Supreme Court of Washington

271 P. 878

149 Wash. 685

DAVIDSON v. MACKALL-PAINE VENEER CO.

No. 21392.

Supreme Court of Washington

November 27, 1928

Department 2.

Appeal from Superior Court, Clark County; Geo. B. Simpson, Judge.

Action by R. P. Davidson against the Mackall-Paine Veneer Company. From the judgment, defendant appeals. Reversed with directions.

Miller Wilkinson & Miller, of Vancouver, for appellant.

Crass &amp Hardin, of Vancouver, for respondent.

FRENCH J.

The Mackall-Paine Veneer Company, a corporation, owns and operates a veneer plant at Vancouver, Wash. In the fall of 1926, R. P. Davidson was, and had been for a few years, engaged in the installing and operation of a large veneer plant in Sweden. Mr. Davidson had formerly worked in several plants on the Pacific Coast, and had been sent to Sweden to install American-made machinery and operate the plant for at least a limited period. In the early fall of 1926, the Mackall-Paine Veneer Company was desirous of employing a superintendent to take charge of the operation of their plant at Vancouver, Wash., and had made a number of inquiries of different people, endeavoring to locate some man to suitably fill the position. Among others of whom inquiry was made was a Mr. Chase of Tacoma, Wash. Mr. Chase was engaged in the business of selling glue to the various veneer plants up and down the coast. It seems that glue is used in large quantities by these various plants, and from the statements of Mr. Chase it appears that he was very familiar with all of the plants on the Pacific Coast, and did a large amount of business with most of them. Evidently as a result of the inquiry made by the Mackall-Paine Veneer Company of Mr. Chase, concerning the possibility of securing a suitable superintendent, the following cablegrams and letters were exchanged between appellant and respondent; the first cablegram sent to respondent on August 26, 1926, reading:

'Chase suggests you for superintendent our plant. Cable if interested how soon available. Mackall-Paine Veneer Co.'

To which Mr. Davidson replied from Sweden by cable dated August 27, 1926:

'Booked to sail October ninth. Arrive Vancouver about November fifteenth. If satisfactory cable me best proposition yearly basis for real quality production superintendent. R P. Davidson.'

On August 31, the following cablegram was received by Mr. Davidson:

'Six thousand annually. Can you sail sooner. Cable. Mackall-Paine Veneer Co.'

On September 2 Mr. Davidson cabled:

'Accept proposition. Arrive near November first. Possible steamers crowded to change date. Writing. Davidson.'

And on September 4 Mr. Davidson wrote to the veneer company:

'Your several cables received and accepted and I am to enter your employ as Supt. of your Veneer and Panel plant at a salary of $6,000 year. I also promise to get there near November 1st as possible. * * * Davidson.'

On arriving in New York City from Sweden, the respondent was notified by the appellant by wire that the circumstances were changed as to the position, and that a letter of explanation would follow. The letter of explanation that did follow stated that appellant had found it advisable to arrange for a man to come into the appellant company as general superintendent and assistant manager and take a financial interest in the company, and that the employment of any additional help would have to be left to the new superintendent. Respondent, however, proceeded to the Vancouver plant and held himself in readiness to perform his part of the contract of employment for some weeks, and thereafter accepted employment with a concern at Aberdeen, Wash., at a somewhat less salary. This action was brought to recover on the contract as evidenced by the cablegrams and letters, tried before the court with a jury, and from a judgment granting certain of the relief prayed for the veneer company has appealed.

After the various letters and telegrams passing between the parties were introduced in evidence, all of which, in so far as they are deemed material, are set out above, respondent introduced certain testimony tending to show that it was the custom in making contracts such as this that the employment should be for one year, and the case was submitted to the jury on the theory of a trade custom or usage. The principal complaint of the appellant centers around the latter part of instruction No. 4, which instruction reads as follows:

'Instruction No. 4.

'It is admitted in this case that a contract was entered into between plaintiff and defendant for the employment of the plaintiff by the defendant at a

...