Meeker v. Johnson
| Decision Date | 14 February 1893 |
| Citation | 32 P. 772,5 Wash. 718 |
| Parties | MEEKER ET AL. v. JOHNSON |
| Court | Washington Supreme Court |
Appeal from superior court, Lewis county; Edward F. Hunter, Judge.
Action by E. Meeker and Fred Meeker, partners, against Ira Johnson for the possession of personal property or its value. From a judgment for defendant, plaintiffs appeal. Affirmed.
For dissenting opinion, see 34 P. 148.
Pritchard Stevens, Grosscup & Seymour and Reynolds & Stewart, for appellants.
Herren & Elliott, for respondent.
On August 9, 1890, the plaintiffs and the defendant entered into the following contract in writing: On the 15th day of October, 1890, in pursuance of his agreement, Johnson commenced hauling his hops to the station at Napavine. He hauled but two loads on that day, for the reason that no more could be put into the warehouse where they were to be delivered until plaintiffs' agent, Mr. Lowry, removed other hops which were then in the warehouse, and which were not removed until late in the evening. The next day it rained, and no hops could be hauled. On the following day, the 17th of October, he placed the remainder of his crop of hops in the warehouse, and so notified Lowry. At the latter's request, Johnson went to Napavine the next morning, which was Saturday, for the purpose of assisting in the weighing and inspection of the hops. After they were inspected and weighed they were placed in a railroad car provided for that purpose by the plaintiffs. It was about 3 or half past 3 o'clock in the afternoon when they finished weighing and putting the hops into the car. The entire weight of the hops was then ascertained, and their value at the contract price agreed upon. Immediately thereafter a conversation occurred between Mr. Lowry, plaintiffs' agent, and the defendant, as to which there is practically no controversy. As to what was then said the defendant Johnson testified: To this Lowry says he replied: During the course of the conversation in regard to the payment for the hops Lowry told Johnson that he would guaranty that the hops would not leave the station until his money was paid. Lowry attempted to telegraph to his principals at Puyallup in regard to the condition of affairs, but, the wires being down, he was unable to reach them. Johnson "fastened up" the car containing the hops and went home, and did not return until Monday. Lowry took the first train, which left Napavine about 5 o'clock in the afternoon, and went to Chehalis, (nine miles distant,) where the nearest bank was situated, and from there telegraphed to Meeker. When he arrived at Chehalis on Saturday evening the bank was closed. On Monday morning he returned to Napavine by the earliest train from Chehalis, arriving there about 11 o'clock. He at once met Johnson, and offered to pay him the full value of the hops in gold coin. Johnson declined to accept the money, claiming that the plaintiffs had violated their contract, and some time during the afternoon removed the hops from the car with the knowledge of and without any objection from Lowry, and placed them in a building belonging to one Urkhart, where they remained until taken by the sheriff and delivered to the plaintiffs by virtue of process regularly issued in this action.
This is the second time this case has been before this court, and the facts disclosed in the record are substantially the same facts which were presented on the former appeal; and the learned counsel for the appellants have not discussed certain questions which they considered decided on the first appeal and which are therefore not now subject to re-examination. It is the settled law of this case that the title to the hops in question did not vest in the plaintiffs on the execution of the contract, nor even when they were accepted and placed in the car; and also that the defendant did not waive the right of possession by extending the time of payment until midnight of the day on which the hops were delivered. See Meeker v. Johnson, 3 Wash. St. 247, 28 P. 542. But appellants strenuously insist that this court, at the former trial, decided that they were entitled to a reasonable time for payment after the ascertainment, by weighing and examination, of the amount to be paid under the contract, and that, therefore, the trial court, by refusing the instructions asked by appellants, as well as by the instructions given on its own motion, erroneously took that question from the consideration of the jury. Turning to the opinion of the court, at page 261, 3 Wash. St., and page 546, 28 P. Rep., we find this language: "It is also contended that the vendee was not given a reasonable time to procure the money to make the payment after the delivery of the goods, but, even if the question of reasonable time could be considered at all in an executory contract, where the time of payment was specified in the contract, and no provision made in the contract for notice, yet that question was submitted to the jury under instructions that were favorable to the plaintiff, and the jury have passed upon that proposition, and this court is not authorized to disturb their findings." While the court did not in positive and unequivocal language decide the question, it would seem that the only inference that could be legitimately drawn from what was there said is that the question of reasonable time for payment should not have been considered at all in the construction of the contract under consideration, but, having been considered and passed upon by the jury, their verdict,...
To continue reading
Request your trial