Minnesota Sandstone Co. v. Clark

• Decision Date: 26 July 1904
• Citation: 35 Wash. 466,77 P. 803
• Parties: MINNESOTA SANDSTONE CO. v. CLARK.
• Court: Washington Supreme Court

77 P. 803

35 Wash. 466

MINNESOTA SANDSTONE CO. v. CLARK.

Supreme Court of Washington

July 26, 1904

Appeal from Superior Court, Spokane County; William E. Richardson Judge.

Action by the Minnesota Sandstone Company against F. Lewis Clark. Judgment for plaintiff. Defendant appeals. Affirmed.

Thayer & Belt, for appellant.

Moore & Corbett, for respondent.

PER CURIAM.

The Minnesota Sandstone Company, plaintiff, commenced this action against F. Lewis Clark, defendant, in the superior court of Spokane county, to recover a balance due said company on a written contract. Judgment was rendered herein in favor of plaintiff, and defendant appeals.

Respondent company's cause of action is founded upon a written contract executed to it by appellant, which is as follows:

'September 13, 1900.

'Mr. W. W. Butler, Agent Minnesota Sandstone Co. Spokane, Washington. Dear Sir: We accept your proposal for the sum of Five Thousand and Two hundred and fifty dollars for the cut stone for the Spokane Club Building, to be erected at the corner of Washington St. and Riverside Ave Spokane, Washington.

'With the following conditions: The Stone is to be the Kettle River Sandstone, from the quarries of the Minnesota Sandstone Co., at Sandstone, Minnesota; the stone to be cut fitted an finished ready for placing in the wall; the finish to be ten cut, patent hammered mered face, all stone to be of the best quality and free from flaws, seams or streaks, and as good as sample submitted and now on file at this office.

'The work to be done in accordance with the plans, specifications, sections and details prepared by John K. Dow, architect, and such further drawings as may be necessary to illustrate the work to be done, so far as they may be consistent with the original drawings, and to the satisfaction of the architect; the work to be finished and delivered complete on or before the 5th day of October, 1900.

'We will pay the freight charges, as agreed upon between you and I, the above price being f. o. b. Sandstone, Minnesota.

'Respectfully yours,

'John K. Dow, Architect.

'The above conditions accepted.

'W. W. Butler, Agent.'

The complaint alleges that respondent furnished and delivered to appellant the aforesaid stone at the agreed price of $5,250, and that appellant has paid respondent on account of this contract $4,500, leaving a balance due of $750, for which, with legal interest from January 1, 1901, respondent asks judgment. Appellant, in his answer, admitted the execution of the contract, but alleged that it comprehended other stipulations pertaining to the payment of the freight on said stone from Sandstone, Minn., to Spokane, wash.; alleged that it was agreed, as a part of said contract, that respondent would guaranty that the freight rate to be charged by the Great Northern Railway Company for transporting said stone from the above point in Minnesota to Spokane, Wash., should not exceed 30 cents per hundredweight; that, 'if said railway company should charge and defendant should pay more than said rate, then that plaintiff would refund to defendant any excess that defendant should be obliged to pay said railway company in excess of said rate; and that, if said railway company should refund or rebate any moneys paid by defendant to it in excess of said rate, then that such moneys so refunded should belong to defendant, and be delivered and paid over by plaintiff to defendant.' The first affirmative defense reiterates this alleged agreement pertaining to the refunding of the excess of freight charges which were paid by appellant at the rate of 8 5 cents per hundredweight, amounting to the sum total of $2,561.90. This defense further alleges that 'thereafter said railway company paid to plaintiff, through its said agent, W. W. Butler, as a rebate on said freight, so as to make the freight charges amount to 30 cents per hundredweight, the sum of $1,657.70, and said plaintiff received said sum of $1,657.70 from said railway company on or about the 1st day of January, 1901, and still retains and holds the same, but the plaintiff refuses to pay same to defendant, and wrongfully withholds same, although payment thereof has been demanded of it.' It is further alleged that appellant was obliged to recut and refit a portion of the stone furnished, at an expense of $121.38. The second affirmative defense alleges that respondent company received from the Great Northern Railway Company the sum of $1,657.70 for the use and benefit of appellant, which it refused to pay over to appellant. Appellant demanded judgment in accordance with the allegations of his said answer. Respondent, by its reply, denies the new matter alleged in the answer, except as to the above credit of $121.38, which it admits.

There is very little dispute between the parties to this controversy with regard to its salient features. There was no showing made in the court below at the trial that respondent ever received from the railway company the rebates alleged on the part of appellant. It appears from the transcript that appellant offered evidence tending to show that respondent guarantied that the above freight charges on this stone between the above points should not exceed 30 cents per hundredweight, and that respondent would repay appellant the excess over and above such rate, if he should be compelled to pay the carrier company a greater rate; that appellant was compelled to, and did, pay the railway company, as freight charges for transporting such stone, 85 cents per hundredweight. Respondent company objected to the introduction of this evidence on two grounds: (1) That such testimony tended to prove an oral agreement inconsistent and at variance with the above written contract; (2) that such oral agreement was in violation of the federal statute commonly known as the 'Interstate Commerce Law.' This evidence was admitted tentatively, but after all of the evidence was submitted the trial court discharged the jury, and entered judgment in favor of respondent for the amount claimed in its complaint, less the above credit of $121.38. It would seem from the remarks of the trial judge as noted in the statement of facts that both of the foregoing objections on the part of respondent were sustained.

The material questions raised on this record, necessary to the proper disposition of this appeal, from appellant's standpoint, are presented by the first assignment of error 'The court erred in discharging the jury and ordering judgment for plaintiff.' The theory of appellant, as stated in his answer, on which he seeks to maintain his counterclaim, is that respondent had collected certain rebates from the railway company, for which it had refused to account to appellant, in violation of the alleged oral agreement referred to in the written...