Dorsey v. Strand
| Decision Date | 19 July 1944 |
| Docket Number | 29259. |
| Citation | 150 P.2d 702,21 Wn.2d 217 |
| Parties | DORSEY et al. v. STRAND. |
| Court | Washington Supreme Court |
Department 1.
Action by Seaplane Fisheries Service, Inc., against Gus Strand to recover for services rendered in locating schools of fish by the use of an airplane and communicating the information to fishing boats. During the trial J. J. Dorsey was joined as a party plaintiff. From an adverse judgment, defendant appeals.
Reversed with direction to dismiss.
Appeal from Superior Court, Grays Harbor County J. E. Stone, judge.
Hogan & Adams, of Aberdeen, for appellant.
J. E Stewart, of Aberdeen, for respondents.
This action was commenced by plaintiff Seaplane Fisheries Service, Inc., against defendant, Gus Strand, to recover a sum of money for services rendered during the season of 1941 in locating schools of pilchard by the use of an aeroplane and communicating the information to fishing boats, for which services it is claimed the defendant promised to pay. During the trial the court made an order joining J. J. Dorsey as a party plaintiff. A judgment was rendered against the defendant, from which this appeal has been taken. In this opinion we shall refer to the corporation as though it were the sole respondent.
The events leading up to the litigation are as follows: The appellant and others were engaged in the business of purchasing pilchard for canning. Their processing plants were located in what is known as the Columbia River and the Grays Harbor districts. During the fishing season of each year the pilchard run in schools and may be found off the coast of British Columbia, Washington and Oregon. Certain persons owned fishing boats. They employed fishermen and sold their catches to the packers. Some sole indiscriminately while others contracted with a certain packer for all fish caught. Canadian boat owners and fishermen also operated in the same coastal waters.
For sometime it had been the custom of the Columbia River and the Grays Harbor packers to meet with representatives of the fishermen and boat owners shortly Before the opening of the fishing season to discuss and agree upon the compensation to be paid the fishermen for catching and the boat owners for delivering the fish during the coming season. In the early part of May, 1941, such a meeting was had in Seattle. After the primary business of discussing compensation and prices was over a discussion was had about the advantage of using an aeroplane to fly over the area to locate the schools of pilchard and report their location by radio to the fishing boats and thereby secure a greater tonnage than could be had by the regular method.
There is a conflict in the testimony as to what was the net result of the discussion. But we conclude after a review of it that a committee of three was selected, consisting of J. J. Dorsey, president of the Bay City Fishing and Packing Company, representing the packers, Bernhard Sandvick, secretary of the Pacific Coast Purse Seiners' Association, representing the boat owners, and Paul Dale, representing the fishermen's union, and they were authorized to find an aeroplane, with pilot and observer, that could be chartered to undertake the services, and report back at another meeting of the three groups. It was contemplated that at this later meeting the final details of the plan would be agreed upon as among themselves and furnish the basis of a contract with the owner of the plane. It was tentatively considered that for the services rendered the fishermen and boat owners should pay the sum of 20 cents a ton for fish caught during the season.
During the discussion Mr. Dorsey stated that he knew of a plane and a pilot that might be secured. It seems that he had an arrangement, which he termed an option, with a plane pilot residing in California to the effect that, if the plane was secured, Mr. Dorsey might purchase it from him. He did not disclose these facts at the meeting. The appellant understood from the discussion, and we think he was justified in so understanding, that, if a plane was chartered and the operator and observer were furnished by its owner, they would be impartial in notifying the boats of the location of the schools of pilchard and no one boat or packer would gain any advantage over the others; also that a contract would be made with the owner of the plane. It is at this point that the whole trouble involved here starts. Instead of the committee acting as a whole and proceeding to carry out its instructions, Mr. Dorsey took the entire matter over and without consulting the other members of the committee, exercised what he termed his option and purchased the plane. He put it in operation late in June, using the airport at Westport as a base. Title to the plane was transferred to the respondent after it was incorporated on June 24, 1941. Mr. Dorsey was one of the incorporators and became the owner of all its capital stock except two qualifying shares. A few weeks after the meeting Mr. Dorsey prepared and presented to appellant and others the following instrument:
'We agreed to the above.'
The agreement was signed by the packers, including the appellant, the Boat Owners' Association and the Union. All parties except the Union also signed under the caption 'Guarantors' and placed after their respective names amounts aggregating the sum of $1300.
On July 29, 1941, the respondent corporation sent a copy of the above-quoted instrument to appellant asserting that it was the contract between it and the packers, boat owners and fishermen and requested payment based upon the tonnage of fish he had received to date. On July 31st appellant wrote respondent as follows:
'We received your letter of July 29.
'To our knowledge, we have no dealings whatsoever with your corporation and therefore we do not owe you anything.
'We assume that your letter has reference to certain negotiations which were had last May among a number of firms contemplating processing of Pilchards. It is our position that these negotiations remained nothing but negotiations, and were never consummated into a binding legal contract, so that we do not consider that we now have any legal contract with any person, firm or corporation whatsoever in relation to the use of an airplane. But, even if we have (which, of course, we do not admit), we now wish to give notice and we do hereby give notice to you, that we are withdrawing and do hereby withdraw from the contemplated arrangement for the use of an airplane. So if you are interested in any way, please count us 'out."
No payments having been made by appellant this action followed. Other facts will be referred to in our discussion of the questions presented.
The first question to be determined is, What was the purpose and effect of the above-quoted written instrument which is designated in the record as exhibit A? The versions of the respective parties with reference to exhibit A can best be stated by quoting from their briefs. The appellant states:
'(a) Either the 'memo' (Exhibit 'A') was but a step in the preliminary negotiations for the renting of an airplane with a competent, impartial observer which had not yet ripened into an actual contract for the renting of a plane, or,
'(b) That it was a subscription list, a commitment or an offer to contribute 20¢ a ton in all by the three groups towards the rental of a plane and if an offer (which we think it was) that could only be accepted by an individual or a concern meeting the requirements that that individual or concern would be selected by the committee of three appointed at the Gowman Hotel meeting and approved by a meeting subsequently held by the interested parties in acting upon the report of the committee and it was not an offer that Dorsey or any straw corporation organized by him or that any other packer could accept and bind the signers.'
The respondent says: ...
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