Nelson v. Imperial Trading Co.
| Citation | 69 Wash. 442,125 P. 777 |
| Parties | NELSON v. IMPERIAL TRADING CO. |
| Decision Date | 14 August 1912 |
| Court | Washington Supreme Court |
Department 1. Appeal from Superior Court, Spokane County; J. D. Hinkle Judge.
Action by Carl Nelson against the Imperial Trading Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded with instructions to dismiss.
Danson Williams & Danson and George D. Lantz, for appellant.
Charles P. Lund, of Spokane, for respondent.
Appellant is engaged in the wholesale fish and poultry business in Spokane. Respondent resides in Hutchinson, Kan. The alleged contract of sale was made by the following telegrams which passed between the parties:
Appellant contends that, instead of being fancy dry picked, many of the turkeys which respondent shipped were of inferior quality; that they did not reach Spokane within the contracted period; and that excessive shipments were made. It refused to accept the shipments. A portion of the turkeys, which subsequently spoiled, were condemned and destroyed. The remainder were stored, and later sold for less than the contract price. Respondent claimed damages for express charges, storage charges, loss of turkeys destroyed, and depreciation in price. The undisputed evidence shows that after being killed and dressed turkeys should be permitted to cool for 24 hours before shipment; that when respondent received the order he had only 2,000 pounds of live turkeys on hand; that he killed and dressed these on November 18th, permitted them to cool, and shipped them about 6 o'clock on the afternoon of November 19th; that after receiving the order he purchased about 3,000 pounds of live turkeys, which he killed and dressed on November 19th, permitted them to cool for 24 hours, and shipped them about 6 o'clock on the afternoon of November 20th. These two shipments reached Spokane during the night of November 23d and during the night of November 24th, practically one and two days later than was contemplated by the contract. The first shipment amounted [69 Wash. 444] to 1,920 pounds, a little less than half the order. The second amounted to 3,100 pounds, which, added to the first, exceeded the entire order by more than half a ton. Appellant contended and introduced evidence to show that it needed the turkeys to supply retail dealers for the Thanks-giving trade; that to supply this trade it was necessary to receive the stock not later than during business hours on Saturday, November 23d; that both shipments arrived too late for that purpose; and that appellant was unable to fill its orders. Appellant introduced further evidence to show that the turkeys were of an inferior quality, and not suitable for appellant's trade, while respondent's evidence was that when shipped the turkeys were all of the quality ordered, well packed, and in good condition.
Appellant's principal contention is that the trial court erred in denying its challenge to the sufficiency of the evidence and its motion for judgment notwithstanding the verdict. It insists that respondent's duty was to deliver an entire shipment of two tons at Spokane not later than during business hours on November 23d; that he failed to do so; that the shipments were made too late; that he finally shipped more turkeys than were ordered; that the turkeys were of an inferior quality; and that by reason of any one of these breaches appellant was entitled to reject the entire shipment. Respondent insists that appellant's only assigned reason for rejecting the turkeys was that they were of an inferior quality; that by assigning that exclusive reason it waived other objections now urged; that by their verdict the jury found the turkeys were of the quality ordered; and that the judgment should be affirmed.
In considering appellant's challenge to the sufficiency of the evidence, and its motion for judgment notwithstanding the verdict, we proceed upon the theory that the turkeys were of the quality ordered. The evidence on that issue was conflicting, and was resolved by the jury in respondent's favor. It is conceded, and respondent testified, that the first shipment was made from Hutchinson on November 19th, about 6 p. m.; that the second was made on November 20th, about 6 p. m., and that it would require at least four nights and three days for transportation to Spokane. Some question is raised as to whether delivery was to be made in Hutchinson or in Spokane....
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