Henrikson v. Pacific Coast Packing Co.

• Decision Date: 28 January 1920
• Docket Number: 15316.
• Citation: 109 Wash. 644,187 P. 377
• Parties: HENRIKSON v. PACIFIC COAST PACKING CO.
• Court: Washington Supreme Court

187 P. 377

109 Wash. 644

HENRIKSON v. PACIFIC COAST PACKING CO.

No. 15316.

Supreme Court of Washington

January 28, 1920

Department 1.

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

Action by H. A. Henrikson against the Pacific Coast Packing Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions to overrule demurrer to defendant's affirmative defense.

Mitchell J., dissenting.

Bogle Merritt & Bogle, of Seattle, for appellant.

G. E Steiner, of Seattle, for respondent.

MAIN J.

The purpose of this action was to recover the balance claimed to be due under the guaranty clause of a written contract.

The defendant answered the complaint by certain admissions and denials and an affirmative defense. To the affirmative defense a demurrer was interposed and sustained by the trial court. The defendant declined to plead further and elected to stand upon the defense as pleaded. Thereupon judgment was entered against the defendant as prayed for in the complaint, and from that judgment the appeal is prosecuted.

The facts alleged in the complaint and in the affirmative defense thereto will be summarized, so far as necessary to present the controlling question. The complaint alleged:

That the respondent was the owner of the gas boat Taholah, a purse seine fishing vessel, and was himself an experienced fisherman. That the appellant was a corporation organized under the laws of the state of Washington. That on or about the 6th day of June, 1918, the parties entered into a written contract as follows:

'This agreement, entered into at Seattle, Washington, this 6th day of June, 1918, between Pacific Coast Packing Company, hereinafter referred to as Company, and H. A. Henrikson, owner of the seine boat Taholah, witnesseth: That H. A. Henrikson hereby agrees to fish in the waters of Southeastern Alaska for the Pacific Coast Packing Company, exclusively during the season of 1918, and the Pacific Coast Packing Company hereby agrees to purchase such fish so caught by H. A. Henrikson and the purse seine boat Taholah.

'It is further agreed that H. A. Henrikson shall fish throughout the season of the run of humpback salmon in Southeastern Alaska; the Pacific Coast Packing Company agrees to take delivery of all fish so caught and delivered by the purse seine boat Taholah to the company's plant located in Cleveland Passage, paying for same at the rate of five cents for each and every good humpback salmon, and the going price of the district for all other fish so caught and delivered to the plant of the company.

'H. A. Henrikson agrees, whenever possible, to turn over all fish taken by the seine boat Taholah to the plant of the company, but in the event that he is unable to make delivery to the plant before the fish might spoil he is to be permitted to dispose of the fish elsewhere. Amount received by H. A. Henrikson for fish so sold shall apply upon this agreement.

'The Pacific Coast Packing Company hereby agrees that, in case H. A. Henrikson does not catch enough of the various kinds of fish during the season of 1918 to the amount of $500.00 per share of ten shares, they will pay the difference between the amount earned and $500.00 per share of ten shares.

'The company agrees to furnish free oil for the operation of the purse seine boat Taholah for the voyage from Seattle to the company's plant and for the return voyage to Seattle. Seattle Coast Packing Co., by W. S. Clark, Sec. and Treas.

'Accepted: H. A. Henrikson, Owner of Purse Seine Boat Taholah.

'Witnessed: H. C. Barney. J. D. Clark.'

That in pursuance of this agreement respondent went to the waters bordering the territory of Alaska with his fishing vessel and fished during the season of 1918, and that for the fish caught he received the sum of $1,824.15. Prayer is made for a judgment for the difference between this sum and the sum of $5,000 mentioned in the written contract, or $3,175.85.

The affirmative defense alleged, after admitting the making of the contract set out in the complaint, that it owned and operated a salmon canning plant located on Frederick Sound in the southeastern portion of the territory of Alaska; that the respondent went to Alaska during the season of 1918, and caught and delivered to the appellant a certain quantity of salmon; that on August 10, 1917, the Congress of the United States duly passed, and thereafter the President of the United States approved, an act entitled 'An act to provide further for the national security and defense by encouraging the production, conserving the supply, and controlling the distribution of food products and fuel' (Act Aug. 10, 1917, cc. 52, 53, 40 Stat. 273, 276) which act is known as the Federal Food Control Act; that at the time of the execution of the contract upon which the respondent's action is based the act was in full force and effect and has since this time remained in force and effect; that in the act the President of the United States was given full power and authority to carry out and enforce the provisions thereof, and to make such regulations and issue such orders as were essential for that purpose; that under the power and authority so vested in the President, and long prior to the making of the contract between the parties to this action, there was duly created a Food Administration of the United States for the purpose of carrying out and enforcing the provisions and purposes of the act; that prior to the making of the contract between the parties to this action the United States Food Administration, under and by virtue of the act and with the approval of the President, determined and fixed the prices of salmon which the appellant had the right to pay and which the fisherman had the right to receive; that the respondent had been paid for all the salmon caught and delivered to the appellant the prices fixed in pursuance of the Federal Food Control Act; and that the reason for not paying the balance claimed to be due under the guaranty clause in the contract was that to do so would be to pay more for the fish received than the prices fixed under and by authority of the Food Control Act. It thus appears that all the fish caught by the respondent during the season of 1918, and delivered to the appellant, had been paid for at the prices fixed by the United States Food Administrator.

The controlling question is whether the guaranty clause in the contract was an unlawful undertaking, as violating the federal act, if it resulted in paying more for the fish than the prices fixed...