McCartney v. Glassford

• Decision Date: 29 January 1889
• Citation: 1 Wash. 579,20 P. 423
• Parties: MCCARTNEY ET AL. v. GLASSFORD.
• Court: Washington Supreme Court

20 P. 423

1 Wash. 579

MCCARTNEY ET AL. v. GLASSFORD.

Supreme Court of Territory of Washington

January 29, 1889

Error to district court, Spokane county; GEORGE TURNER, Judge.

Action by William Glassford against H. M. McCartney, H. D. Sanborn and L. H. Burton, copartners, to recover damages for alleged breach of a written contract. Plaintiff obtained a verdict and judgment. Defendants bring error.

Griffitts, Moore & Feighan, for plaintiffs in error.

Nash, Kinnaird & Murray, for defendant in error.

ALLYN J.

A contract was made February 26, 1885, between William Glassford, of the first part, and H. McCartney & Co., of the second part, by which Glassford agreed to freight 100 tons of produce to the Little Dalles, at the rate of 1 1/2 cts. per pound, -one-half by April 16, and the other half May 20, 1885. The second party agreed to pay the full amount of the freight charges, at above rates, on delivery of the shipping receipts, duly certified to as correct by their clerk. Upon this contract, the suit is based, and it is made a part of the complaint.

The complaint states: (1) The contract. (2) That later the parties mutually agreed that the dates for delivery should be disregarded; otherwise the contract to remain as before. (3) "That under and pursuant to said contract the plaintiff hauled 62 tons and 312 pounds of freight from Spokane Falls to the Little Dalles aforesaid, and remained at all times willing to complete said contract upon his part, and to haul the remainder of said 100 tons. (4) That the defendants, though requested so to do, refused to permit plaintiff to complete said contract, and to haul the balance of said 100 tons, and refused further to perform said contract on their part, by reason of which the plaintiff suffered damage in the sum of $1,133.82. Wherefore the plaintiff prays judgment" for that sum, with interest and costs. To this a general demurrer was interposed, which the court overruled. Defendant preserved his exception, and later a trial was had on issue joined. Action overruling said demurrer is now to be reviewed.

The contract, it will be observed from the complaint, was partly performed. As no mention is made in the complaint of payment had on the part performed, we think it may quite as well be assumed that the amount for which this suit is pressed is for that as well as for that unperformed. Of course, if this is so, the demurrer would not lie. It is said a mathematical calculation will show that the result of the unperformed part, at the contract price, compared with the aggregate claim, will show the suit to be for the breach. This may be a satisfactory mode for the defendants to...