J.W. Seavey Hop Corp. of Portland, Or. v. Pollock

• Decision Date: 23 March 1944
• Docket Number: 29238.
• Citation: 147 P.2d 310,20 Wn.2d 337
• Parties: J. W. SEAVEY HOP CORPORATION OF PORTLAND, OR., v. POLLOCK et al.
• Court: Washington Supreme Court

147 P.2d 310

20 Wn.2d 337

J. W. SEAVEY HOP CORPORATION OF PORTLAND, OR., v. POLLOCK et al.

No. 29238.

Supreme Court of Washington

March 23, 1944

Rehearing Denied May 2, 1944.

Department 1.

Action by J. W. Seavey Hop Corporation of Portland, Or., against Thomas H. Pollock, unmarried, and Stanley H. Hill and Hazel Vail Hill, husband and wife, to specifically enforce delivery of hops pursuant to claimed provisions of a contract, wherein the defendant Thomas H. Pollock filed a cross-complaint. From an adverse judgment, the defendant Thomas H. Pollock alone appeals.

Reversed with instructions.

BLAKE J., dissenting.

Appeal from Superior Court, Yakima County; N. K. Buck, Judge.

Rigg, Brown & Halverson, of Yakima, for appellant.

LaBerge & Lyon, of Yakima, for respondents JEFFERS, Justice.

This action was instituted in the superior court for Yakima county, by J. W. Seavey Hop Corporation, against Stanley H Hill and wife and Thomas H. Pollock, to specifically enforce the delivery of hops, under and pursuant to the claimed provisions of a certain contract entered into April 9, 1942 by and between Stanley Hill and wife as sellers, and plaintiff corporation as buyer.

In the complaint it is alleged that plaintiff is an Oregon corporation, having its principal place of business at Portland, Oregon; that the corporation does not transact business in Washington; that defendant Pollock is the owner of certain land in Yakima county (describing it), of which 17.66 acres is planted to hops; that Pollock leased this hop land to defendants Hill, by written lease dated April 9, 1942, which lease reserved to Pollock, as rental, 7,000 pounds of hops to be grown upon the land during 1942.

It is further alleged that on April 9, 1942, defendants Hill entered into a written contract with plaintiff; that prior to the execution of the contract, plaintiff was advised of the existence of the lease between the defendants, and that Pollock was entitled as rental for the premises to 7,000 pounds of hops produced in 1942; that Pollock, in writing, consented to the execution of the contract between plaintiff and defendants Hill; that plaintiff, between April 21 and September 5, 1942, advanced to Hill $5,500.

It is further alleged that there was produced upon the land during 1942 eighty-five bales of hops, of the net weight of 15,571 pounds, which hops were stored by Hill and Pollock in the warehouse of H. R. Spinner Company, in Yakima; that plaintiff has demanded delivery of the hops, and has offered to pay the amount due under the contract, but delivery has been refused, for the reason that Pollock claims 7,000 pounds of the hops, notwithstanding the fact that the ranch produced only 15,571 pounds of hops, that being less than the amount contracted to be sold to plaintiff under the contract. (The contract called for 20,000 pounds of hops.)

It is further alleged that the total valuation of the hops, under the terms of the contract, is $6,384.10, and that plaintiff has tendered to defendants the sum of $884.10, being the difference between the contract price and the advancements made, which tender and demand have been refused.

We have set out this complaint, in order that we may have Before us the issues therein tendered, and their effect on one of the questions hereinafter discussed.

Service of a copy of the summons and complaint was accepted by Pollock on November 30, 1942. On December 8, 1942, all of the parties entered into a stipulation and agreement, which provides in part as follows:

'Whereas, this action involves the right of the plaintiff to the possession of 15,571 pounds of hops produced upon the land described in plaintiff's complaint, and

'Whereas, the defendant, Thomas H. Pollock, claims that he is entitled to 7,000 pounds of said hops, and

'Whereas, it is the desire of the parties hereto to avoid any loss which might arise by reason of holding said hops until the termination of this litigation and plaintiff has offered to deposit in the registry of this court the sum of $8,750.00 to be held in lieu of said 7,000 pounds of hops [hops went to one dollar a pound in September, 1942; to $1.25 a pound in October; and $1.50 a pound in November], on condition that all of the hops produced upon said land as above set forth shall be delivered to he plaintiff;

'Now, therefore, it is Hereby Stipulated and Agreed by and between the plaintiff and the defendants as follows:

'1. That the plaintiff will deposit into the registry of this court the sum of $8,750.00 in cash, and shall pay outstanding checks and hop tickets issued by defendant Stanley H. Hill in the sum of approximately $563.00, said sum to be taken into consideration by the court in the event that the plaintiff shall prevail herein.

'2. That all of the hops produced upon said land, consisting of 85 bales, shall be delivered to plaintiff.

'3. That said sum of $8,750.00 shall be held in the registry of this court until the final determination of this action.

'4. In the event the plaintiff shall prevail in this action, then the court shall award to the defendant, Thomas H. Pollock, such sum as he shall be entitled to receive if any, less plaintiff's costs and disbursements herein, and shall award the balance of said money to the plaintiff herein.

'5. That the defendants, Stanley H. Hill and Hazel Vail Hill, husband and wife, shall take nothing by this action.

* * *

* * *

'7. That in the event the defendant, Thomas H. Pollock, shall prevail in this action, then the court shall award to him the full sum of $8,750.00, together with his costs and disbursements.'

Paragraph 8 provides:

'In entering into this stipulation and agreement, it is particularly understood and agreed that none of the parties hereto shall waive any of their legal rights and that this action shall be tried upon its merits and decision rendered without reference to this stipulation and without prejudice to any of the parties to this litigation by reason of the execution of this stipulation and agreement, except as hereinabove specifically set forth.'

On December 10, 1942, plaintiff and defendant Pollock entered into a further stipulation, which supplemented the stipulation of December 8th in the following particulars:

'Whereas, by stipulation and agreement dated December 8, 1942, said hops [85 bales] were to be delivered to the plaintiff upon deposit of the sum of $8,750.00, and

'Whereas, in pursuance of said stipulation and agreement said hops have been inspected and weighed and it has been determined that two bales thereof were slack dried and have perished and are of no value whatsoever, and have been rejected by the plaintiff;

'Now, Therefore, It is Hereby Stipulated And Agreed that the net weight of the hops so delivered to plaintiff is 15,189 pounds, instead of 15,571 pounds, and that the number of bales is 83 bales instead of 85 bales.

'It Is Further Stipulated And Agreed that the amount of the outstanding checks and hop tickets to be paid by the plaintiff is $504.77 instead of $563.00 * * *

'It Is Further Stipulated And Agreed that whereas, plaintiff deposited in the registry of this court the sum $884.10, as a tender at the time of the commencement of this action, that the plaintiff shall deposit an additional sum of $7,865.90, and that the total sum of $8,750.00 shall remain in the registry of this court pursuant to said stipulation and agreement of December 8, 1942.'

On January 8, 1943, defendant Pollock served his answer and cross-complaint upon plaintiff. By his answer Pollock admitted that plaintiff is an Oregon corporation; that he is the owner of the land upon which the hops were grown; that he leased the hopyard to Hill and wife, for the term of one year, from April 1, 1942, reserving as rental 7,000 pounds of hops; that Hill and wife entered into the written contract with plaintiff dated April 9, 1942, referred to in the complaint; that plaintiff advanced to Hill under the contract $5,500; that eighty-five bales of hops, 15,571 pounds (changed by stipulation of December 10th to eighty-three bales, or 15,189 pounds) were produced on the place in 1942; that the hops were stored in the Spinner warehouse by Hill and Pollock. Pollock also admitted a demand for the hops and a tender of $884.10.

By his answer, Pollack denied that plaintiff is not doing business in the state of Washington; that he (Pollock) ever consented to a sale to plaintiff of his 7,000 pounds of hops. Defendant then set up four affirmative defenses and cross-complaints. The substance of the first affirmative defense is that the hop contract is ambiguous, uncertain and indefinite, and that oral evidence is necessary to show in truth and in fact that the contract does not and was never intended to include Pollock's share of the crop, to-wit, the 7,000 pounds of baled hops reserved to the lessor under the lease.

The substance of the second affirmative defense is that if the hop contract is in any way binding upon defendant, the same does not speak the true intent of the parties; that the same was signed by all the parties as the result of a mutual mistake, to-wit, all of the parties at the time the contract was signed considered that the hopyard would produce 30,000 pounds of hops; that by the contract Hill intended to sell and plaintiff intended to buy only Hill's share of the crop, and that by signing or consenting to the contract, Pollock intended to release any claim or lien which he might have against Hill's share of the crop only; that it is necessary that the contract be reformed to speak the true intent of the parties, and to limit the same to Hill's share of the crop.

The third affirmative defense is based upon alleged misrepresentations made by Mr. Schott, as agent for pl...