Goldstein v. J. W. Carter Co.

• Decision Date: 12 June 1930
• Docket Number: 22047.
• Citation: 288 P. 1063,157 Wash. 405
• Parties: GOLDSTEIN v. J. W. CARTER CO.
• Court: Washington Supreme Court

288 P. 1063

157 Wash. 405

GOLDSTEIN v. J. W. CARTER CO.

No. 22047.

Supreme Court of Washington

June 12, 1930

Department 2.

Appeal from Superior Court, King County; John M. Ralston, Judge.

Action by A. M. Goldstein, sole trader doing business under the name and style of the Bernhard Shoe Company, against the J. W Carter Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

McClure & McClure and Walter S. Osborn, all of Seattle, for appellant.

Weter Roberts & Shefelman and Ernest M. Russell, all of Seattle for respondent.

FULLERTON, J.

The respondent, Goldstein, is a retail shoe dealer, doing business in the city of Seattle under the trade-name of Bernhard Shoe Company. The appellant, J. W. Carter Company is a corporation, engaged in the business of manufacturing shoes at the city of Nashville, in the state of Tennessee which shoes it sells to the retail trade. In July, 1927, the respondent purchased from the appellant, through its salesman, one Bradley, 142 pairs of shoes, from samples shown him by Bradley. The respondent paid for the shoes on their delivery to him, and placed them on his shelves for sale to his customers. Almost immediately after the sales began, the purchasers of the shoes commenced to return to his place with the shoes, complaining of their inferior quality. The fault was in the soles of the shoes, and these had the appearance of being burned. The respondent did not make adjustments with his customers when the complaints were first made, believing that the customers themselves had burned the shoes. As the complaints became more numerous, the respondent himself became doubtful of their quality, and investigated the new shoes remaining in his stock. This investigation disclosed that practically all of the shoes were defective, that by bending the soles many of them would break for their full width, and that others would crack sufficiently to cause a leak. A number of pairs of the partially worn shoes, and a number of new pairs, were brought into court as exhibits. These require but a glance to show their worthless character. After discovery of the bad quality of the shoes, the respondent quit selling them, and thereafter made adjustments with his complaining customers, either by replacing the shoes with new pairs of another make, or refunding the purchase price in whole or in part.

The appellant refused to make any adjustment with the respondent on account of his losses, and he thereupon began the present action. In his complaint he alleged that he was doing business under a trade-name, alleging further that he had complied with the statute relating to such instances (Rem. Comp. Stat. § 9976) by filing the certificate therein required. In stating the grounds for his recovery, the respondent made the following allegations:

'V. That said shoes were received by plaintiff in July, 1927, and were offered for sale in his store in the city of Seattle. That an appreciable number of pairs of said shoes were thereafter sold to plaintiff's customers and that soon thereafter many of said customers informed plaintiff that the shoes purchased, as aforesaid, had cracked and fallen apart and were not suitable for wear; that certain other customers did not return to plaintiff's store and have ceased trading with plaintiff; that plaintiff was compelled to repay certain of the customers the purchase price of said shoes; and that the unsold portion of said shoes are unfit for wear and unmarketable.

'VI. That as a result of the sale of said inferior and defective shoes, plaintiff has been seriously damaged; that plaintiff's prior reputation for integrity and his reputation as a vendor of good merchandise has been damaged; that he has lost many customers, who have refused and will refuse to again buy any shoes of plaintiff; that the unsold shoes now in plaintiff's possession are of no value whatsoever and that plaintiff has been compelled to return the purchase price of said pairs of shoes to certain of his customers.

'VII. That the loss to plaintiff, directly and naturally resulting in the ordinary course of events aforesaid upon the breach of the hereinbefore described warranties, is the sum of Five Thousand Dollars.'

The cause was tried by the lower court sitting without a jury, and resulted in a judgment in favor of the respondent for $246.70, made up of the following items: For defective merchandise, $116.70; for adjustments made with customers, $10; and for damages, $120.

In this court the appellant first complains because there was no proof that ...