Goldie-Klenert Distributing Co. v. Bothwell

• Decision Date: 20 February 1912
• Citation: 121 P. 60,67 Wash. 264
• Court: Washington Supreme Court
• Parties: GOLDIE-KLENERT DISTRIBUTING CO. v. BOTHWELL.

121 P. 60

67 Wash. 264

GOLDIE-KLENERT DISTRIBUTING CO. v. BOTHWELL.

Supreme Court of Washington

February 20, 1912

Department 1. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by the Goldie-Klenert Distributing Company against William J Bothwell. From a judgment of dismissal, plaintiff appeals. Affirmed.

William Parmerlee, for appellant.

W. C Edwards, for respondent.

GOSE J.

This is an appeal from a judgment of dismissal, entered after demurrer to the complaint had been sustained, and after the plaintiff had refused to plead further.

The complaint is of too great length to be set forth in full. In substance and effect, it alleges that the appellant and the Luneta Café are corporations; that the respondent is a stockholder in the latter corporation; that he subscribed for its capital stock in an amount 'in excess of $20,000 which was not paid'; that he was the promoter and originator of the enterprise, and the only person who has put any money into the corporation, and that 'the same was virtually his own business'; that in November, 1910, the café, acting through its officers, purchased from the appellant goods, wares, and merchandise of the value of $1,800, promising to pay cash therefor upon the delivery of the goods; that the appellant delivered the goods to it at its place of business in Seattle and demanded payment; that it was 'unable' to pay; that the respondent then told the appellant that he was 'virtually' the only person who had advanced any money to the café and was the only responsible person connected with it; that it was 'virtually' his business, but that, owing to the fact that he was 'comptroller' of the city, and that the business of the café was that of selling intoxicating liquors and providing amusement and entertainment for its patrons, he did not, 'for political reasons,' desire to disclose his connection with it; that if the appellant would 'forego its demand for cash for the goods then sold to it, and let the account run for a short time,' together with such other goods as said Luneta Café might order from plaintiff from time to time, that he, the said William J. Bothwell, it being his own enterprise and business, and he receiving the benefit thereof, would himself pay said debt of $1,800, and such other subsequent accounts that might accrue from time to time; that, owing to his holding public office, he did not desire the goods charged to him, but the goods so sold by plaintiff to the Luneta Café, and to be sold to the Luneta Café thereafter, should be charged solely to the account of the said Luneta Café, and that he, the said Bothwell, would pay the same and become responsible therefor; and that he, the said Bothwell, would indemnify and hold harmless the said plaintiff from any loss on account of its extension of credit for goods sold and to be sold, as aforesaid, to the said Luneta Café, which said goods were to be charged on said plaintiff's books to said café.' It is further alleged that the appellant, relying upon 'said premises and assurances and said indemnity,' permitted the goods therefore sold to the café to remain in its possession, and that subsequently, for like reasons, it sold goods, wares, and merchandise to the café, amounting in all to $2,628.40, and that the respondent has refused payment.

The single question presented by the appeal is, Does the alleged promise of respondent fall within the statute of frauds? The Code (Rem. & Bal. § 5289) provides, so far as pertinent to this question, that 'every special promise to answer for the debt, default, or misdoing...