O'Kelley v. Sali

• Decision Date: 04 November 1965
• Docket Number: No. 37540,37540
• Court: Washington Supreme Court
• Parties: C. W. O'KELLEY, Appellant, v. Phillp SALI and Jane Doe Sall, husband and wife, Respondents.

Page 296

67 Wn.2d 296

407 P.2d 467

C. W. O'KELLEY, Appellant, v. Phillp SALI and Jane Doe Sall, husband and wife, Respondents.

No. 37540.

Supreme Court of Washington, Department 2.

Nov. 4, 1965.

Perry J. Robinson, Yakima, for appellant.

Tonkoff, Holst & Hanson, William B. Holst, Yakima, for respondent.

HAMILTON, Judge.

Plaintiff (appellant), a fruit grower in the Yakima Valley, initiated this suit to recover from defendants, fruit growers and packers, the purchase price of a quantity of apples delivered into defendants' packing warehouse and thereafter marketed. By his complaint, plaintiff alleged that defendants became indebted to him for a stated amount on account of apples sold and delivered to them. Defendants denied the allegation. Upon the issues thus joined, trial was had before the court sitting without a jury.

The trial consumed three days, during the course of which the negotiations between the parties, the marketing of the apples, and the bookkeeping, accounting, and business practices of defendants relative to the applies were explored by the evidence of both parties. Throughout the trial, it was plaintiff's basic theory that he had sold his apples to defendants. Defendants denied they had purchased the apples.

The trial judge, in his oral decision, limited his determination to the question of whether plaintiff had established a contract of sale. He concluded that plaintiff had failed to sustain the burden of proof upon this issue and ordered the cause dismissed. Plaintiff thereafter moved that the trial judge reconsider the evidence and determine thereunder whether defendants were liable to account to plaintiff upon a theory of agency. This the trial judge refused to do. Findings of fact, conclusions of law, and judgment of dismissal were subsequently entered in conformance with the oral decision.

On appeal, plaintiff makes four assignments of error, which, in turn, reduce themselves to two contentions: (1) A challenge to the trial judge's findings of fact to the effect that the transaction between the parties did not amount to a sale, and (2) that the trial judge erred in refusing to determine whether, in the alternative, an agency relationship existed between the parties whereby defendants would be required to account for the apples delivered and sold.

We find no merit in plaintiff's first contention. The negotiations between the parties giving rise to delivery of the apples to defendants' warehouse were oral. The testimony of the parties with respect to these oral negotiations was in direct conflict. The surrounding circumstances upon which plaintiff relied to support his theory of a sale were explained by the defendants. The trial judge carefully analyzed and evaluated the conflicting testimony and circumstances and accepted defendants' version of the transaction. The evidence does not preponderate against such a determination. In fact, the determination that the transaction did not amount to a sale is supported by substantial evidence if defendants' recitation of events is accepted. Accordingly, we will not disturb the trial judge's determination upon this disputed issue. Jones v. Rumford, 64 Wash.2d 559, 392 P.2d 808 (1964).

In support of his second contention, plaintiff points to evidence adduced at the trial, without objection by either party, bearing upon the kind, quality and quantity of the apples delivered to defendants; the method and terms by which apples in defendants' warehouse were packed, shipped, and marketed; and the manner in which various payments for apples marketed were received, accounted for, and disbursed by defendants. From this evidence, plaintiff asserts it could be found that defendants acted in the capacity of a factor or marketing agent. Plaintiff then adverts to Rule of Pleading, Practice and Procedure 15(b), RCW vol. O, which provides in pertinent part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. * * *

We have held that this rule, as was the former rule (Rule of Pleading, Practice and Procedure 6(9), 34A Wash.2d 72 ¹), is to be liberally construed and applied. Burlingham-Meeker Co. v. Thomas, 58 Wash.2d 79, ...