Gordon v. Parke & Lacy Machinery Co.

• Decision Date: 07 November 1894
• Citation: 10 Wash. 18,38 P. 755
• Court: Washington Supreme Court
• Parties: GORDON v. PARKE & LACY MACHINERY CO.

38 P. 755

10 Wash. 18

GORDON v. PARKE & LACY MACHINERY CO.

Supreme Court of Washington

November 7, 1894

Appeal from superior court, Spokane county; Norman Buck, Judge.

Action by Stewart Gordon against the Parke & Lacy Machinery Company to recover for breach of a written contract of sale of its Spokane plant by defendant to plaintiff, and of an alleged parol contract that it would cease to do business in that city. Pending the suit an injunction was granted. From the order granting it, and one refusing to dissolve the injunction, defendant appeals. Reversed.

Richardson & Gallagher and Cox, Cotton, Teal & Minor, for appellant.

Blake & Post, for respondent.

STILES J.

Appellant a corporation existing under the laws of Oregon, was alleged in the complaint in this action, to have agreed with the respondent that it would withdraw from the city of Spokane and cease to do business there, in consideration of the purchase from it by respondent of substantially all its property located there, including machinery fixtures, accounts, and a building lease, for a large consideration named. Further allegations showed the passing of the money consideration, and the transfer of the property, and the breach of the contract to cease doing business. An injunction was prayed pending the suit, and granted. This appeal is from the order granting the temporary injunction, and from a subsequent order refusing to dissolve it. The answer filed by appellant admitted the substance of the transaction concerning the sale of property, as alleged in the complaint, but denied the making of any contract whatever by appellant whereby it undertook not to further engage in the business theretofore carried on by it in Spokane. As exhibits to the pleading, appellant annexed a copy of a contract entered into between it and respondent, at Portland, Or., January 23, 1894, whereby, in consideration of mutual agreements and covenants therein mentioned, each party became bound, viz.: "The party of the first part [appellant], its successors and assigns, will cause to be executed by its duly-authorized officers an assignment and transfer and conveyance to the said party of the second part [respondent] of all its right, title, and interest in and to the following named property, owned by the party of the first part and now situate and being in the city of Spokane, Washington, and will, within ten days from the date thereof, deliver the same to the second party, to wit." Then followed a description of the property, and numerous details not necessary to state, and it was declared: "The intention and object of this agreement being to sell and deliver an aggregate value of $29,000, the foregoing amounts being subject to alteration and increase or decrease after ascertainment by inventory, total amount of said variation not to exceed $500." Such goods as should exceed the inventory were to be left on storage with respondent. Other provisions of the contract related to the manner of payment to be made by respondent. The instrument was executed in due form by both parties, in the presence of witnesses. The reply admitted the execution and performance of the contract referred to, and alleged that the contract described in the complaint was an oral agreement made contemporaneously with the written contract, and was a part of the consideration for the execution of the latter contract, proceeding from appellant to respondent, by which respondent was induced to enter into the arrangement, and without which he would not have done so. Numerous affidavits pro and con are in the record, but it is not necessary to consider them at any length. We think they fall far short of establishing for the respondent a prima facie case. The circumstances narrated show a strong probability that the appellant intended to cease doing business at Spokane; but, aside from the respondent's assertion that a promise of the kind claimed was made to him by certain alleged agents of the corporation, there is no evidence of it. Some of these agents-those in the responsible management of the corporation-deny having made any such...