Dygert v. Hansen

• Court: Washington Supreme Court
• Writing for the Court: [31 Wn.2d 859] HILL, Justice.
• Citation: Dygert v. Hansen, 199 P.2d 596, 31 Wn.2d 858 (Wash. 1948)
• Decision Date: 18 November 1948
• Docket Number: 30612.
• Parties: DYGERT et al. v. HANSEN et al.

199 P.2d 596

31 Wn.2d 858

DYGERT et al. v. HANSEN et al.

No. 30612.

Supreme Court of Washington

November 18, 1948

Department 1

Action by Daniel E. Dygert and others against Hans W. Hansen and Marguerite Hansen, his wife, and Frank L. Wilson and Jane Doe Wilson, his wife, for breach of contract. From a judgment for the plaintiffs, defendants Hans W. Hansen and his wife appeal. Appeal dismissed as to respondents Clyde O. Haglund Larry A. Morton, and Sidney E. Strong.

Judgment affirmed.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Simmons & McCann, of Seattle, for appellants.

Walthew & Gershon and Charles F. Warner, all of Seattle, for respondents.

HILL, Justice.

At all times material to a determination of the issues raised on this appeal, Frank L. Wilson and Hans W. Hansen were members of a copartnership doing business as the Barbara Fishing Company, and owned the fishing vessel 'Barbara.' Hansen had no experience in the fishing industry and left all details concerning the outfitting and operation of the 'Barbara' to Wilson.

It is conceded that the seven respondents had no dealings with anyone except Wilson. They were employed by him with the understanding that they were to go halibut fishing on the 'Barbara' (except Clyde O. Haglund, whose status will be discussed later); and they were to be compensated for their work in preparing the Barbara and her gear for the fishing season and for their services as fishermen during the season, by a certain share of the proceeds of the season's catch. However, just as the respondents completed the preparation of sixty scates of halibut gear the 'Barbara' and the gear disappeared; Wilson left the respondents 'on the beach' and took the 'Barbara' to Alaska on a fishing expedition.

Since compensation under their contracts of employment was thus rendered impossible, the respondents, except Dygert, were permitted to recover at the rate of $1.50 an hour for the time they testified they had worked on the 'Barbara' and the halibut gear. Exclusive of Dygert, their total recovery was $1,135.50

Dygert sought recovery on the basis of an express contract to pay him $1.50 an hour for the time spent in preparing the 'Barbara' and gear for the fishing season, securing additional help, and superintending the work of the other respondents, practically all of whom were inexperienced. He testified that he would not have accepted that employment for that wage if it had not been for the fact that he was to have the opportunity to go fishing on the 'Barbara' and to have the additional compensation of his share of the catch. He testified that his work was worth two dollars an hour, and he was permitted to recover on a basis of 246 hours at that rate, less two hundred dollars previously paid to him.

The judgment for each respondent against both Wilson and Hansen and their respective communities was as follows:

Daniel E. Dygert $292.00

Herbert N. Harris 289.50

Clyde O. Haglund 45.00

John R. Bowers 225.00

Larry A. Morton 198.00

Norman E. Dorland 234.00

Sidney E. Strong 144.00

Mr. and Mrs. Hansen alone appealed. We will hereafter refer to Mr Hansen as though he were the sole appellant.

The appeal as to respondents Haglund, Morton, and Strong must be dismissed, for the reason that the amount in controversy in the case of each of them is less than the jurisdictional amount required on appeal. See constitution, Art. IV, § 4; Smaby v. Shrauger, 9 Wash.2d 691, 115 P.2d 967. No motion was made to dismiss the appeal as to these respondents, but we can and should dismiss an appeal on our own motion when the lack of jurisdiction is apparent. Pattison v. Walker, 2 Wash.2d 62, 97 P.2d 160, 100 P.2d 20; State ex rel. Kinney v. Chapman, 21 Wash.2d 737, 152 P.2d 978.

Appellant's first contention is that, under the agreement between himself and Wilson, it was the latter's responsibility to furnish gear of the value of four thousand dollars for the 'Barbara,' and that Wilson alone was liable for the work done on the gear; and that, in any event, the gear which respondents made up was three times as much as could be used on the 'Barbara' and two thirds of it was intended for other vessels in which Hansen had no interest.

Wilson was clearly the managing partner, and any obligation which he incurred in furtherance of the partnership activities fastened liability upon all the partners, known or unknown. Rem.Supp.1945, § 9975-48(1); Pacific Drug Co. v. Hamilton, 71 Wash. 469, 472, 128 P. 1069; O'Neill v. Dunning, 132 Wash. 138, 141, 231 P. 449; Collyer v. Egbert, 200 Wash. 342, 93 P.2d 399. Any work done in preparing the 'Barbara' and her gear for the fishing season obviously was in furtherance of the partnership activities, despite the fact that, as between the partners, Wilson was responsible for the gear.

It is true that more gear was prepared than would be used on the 'Barbara,' but all the material from which the gear was made was charged to the 'Barbara' and the evidence establishes that it was paid for by the partnership or by the appellant. All the work of preparation of the gear, save that of respondents Dygert and Haglund, was to have been paid by the shares which the respondents would receive for fishing on the 'Barbara.'

All the gear and the 'Barbara' disappeared just after appellant had acquired Wilson's interest in the 'Barbara' and the partnership. (This disappearance is not to be construed as a reflection upon appellant, for having confidence in Wilson, he left him in complete charge of the 'Barbara' and her operations until after the trip to Alaska heretofore referred to.) There is no evidence as to what became of the gear,...