Norbom Engineering Co. v. A. H. Cox & Co., Inc.

• Court: Washington Supreme Court
• Writing for the Court: HOLCOMB, J.
• Citation: Norbom Engineering Co. v. A. H. Cox & Co., Inc., 208 P. 87, 120 Wash. 675 (Wash. 1922)
• Decision Date: 11 July 1922
• Docket Number: 17175.
• Parties: NORBOM ENGINEERING CO. v. A. H. COX & CO., Inc.

208 P. 87

120 Wash. 675

NORBOM ENGINEERING CO. v. A. H. COX & CO., Inc.

No. 17175.

Supreme Court of Washington

July 11, 1922

Department 2.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by the Norbom Engineering Company, a corporation, against A H. Cox & Co., Incorporated, a corporation. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

J. W Russell, of Seattle, for appellant.

Shorett McLaren & Shorett and Edward R. Taylor, all of Seattle, for respondent.

HOLCOMB J.

Respondent moves to dismiss the appeal for the reason that no notice of appeal was served upon the surety on the cost bond furnished upon demand of the respondent, because appeallant is a nonresident corporation.

Upon the trial a nonsuit was granted and judgment of dismissal with costs, ordered against appellant, and against the surety. Respondent's costs were thereafter taxed at $38.20. From the judgment of dismissal this appeal is taken, and appellant did not serve a copy of its notice of appeal upon its surety.

The surety company had no interest in the litigation except as it was liable under the bond executed by it, for costs, and the consequent judgment thereon. It would have no right of appeal upon the mere question of costs, as we have often held; nor could it appeal from a judgment for a sum less than $200. Remington's Code, § 1719, prescribes the service of written notice of appeal upon the prevailing party. Section 1720 provides that all parties similarly affected by the judgment may join in the notice of appeal. Parties not joining have the right to serve an independent notice of appeal within 10 days after the giving of service upon them of the original notice, or may join in the appeal already taken. Any party who does not so join shall derive no benefit from the appeal unless from the necessity of the case.

As was said in Re Ennis' Estate, 96 Wash. 352, 165 P. 119, 'we have held on numerous occasions that service of notice is required on those only who, in addition to appearing in the action, had some right of appeal,' citing cases, and quoting from Robertson Mtg. Co. v. Thomas, 60 Wash. 514, 111 P. 795, as follows:

'We can look no further than to determine (1) whether he was a party to the action appearing in the case, and (2) whether he is entitled to an appeal. If these two conditions concur, it must be presumed that he is affected by the judgment; whether wrongfully affected must be determined on the appeal.'

In this case the surety was not a party to the action appearing in the case, and it is not entitled to appeal of its own right. There was therefore no necessity of serving the notice of appeal upon the surety upon appellant's cost bond. See, also, Mogelberg v. Calhoun, 94 Wash. 662, 163 P. 29.

At the close of appellant's evidence, respondent moved for a dismissal of the action upon the following grounds: (1) That title did not pass; (2) that respondent was not the purchaser of the tables; and (3) that appellant recognized that the Norway-Pacific Construction & Drydock Company was the real purchaser. The trial court granted the motion principally upon the grounds apparently that title did not pass, and that respondent was not the purchaser of the tables, but merely the agent of appellant who knew and recognized that the Norway-Pacific Construction & Drydock Company was the real purchaser.

The controversy is over the sale by appellant of some heavy drydock machinery, known as 'Lysholm Standard Punch Plate Tables,' negotiations for which began in August, 1918, upon a telegram sent by respondent to appellant, which read as follows:

'Have signed order Norway-Pacific for four forty foot tables. Mailing you confirmation today.'

On the day following, respondent wrote a letter to appellant confirming that telegram and inclosing its requisition for the four tables in question. The requisition was upon one of respondent's own requisition blanks, and was signed by its duly authorized agent, and, omitting the heading and date, read as follows:

'B No. 1950.

'Show this number on your invoice.

'Norbom Engineering Co., Philadelphia, Pa.:

'Please enter our order and deliver, if possible, the following articles. Under no circumstances is this requisition to be altered unless properly authorized by us.

Amount

4 only 40 ft. Lysholm standard punch plate tables at $4,000.00 each, less 5% to us. Total, $15,200.00.

'Prices f. o. b. Philadelphia, Pa.

'To be shipped direct to: Norway-Pacific Construction & Dry Dock Co., Everett, Washington.

'Charge Job No. E-5242.

'[Signed] A. H. Cox & Co. Inc.,

'By V. W. Thursen.'

In the letter accompanying the invoice, respondent said:

'Confirming telegraphic advice of yesterday, we obtained a signed order from the Norway-Pacific Construction & Drydock Co., for four (4) only 40 ft. Lysholm Standard Punch Plate Tables and we inclose you herewith our requisition #B-1950 covering the same.

'We also inclose you herewith our check for 10% in the amount of $1520.00--leaving a balance due you of $13,680.00 which it will be in order for you to draw upon us for with bill of lading at time of shipment.

'We trust you will be able to make delivery as quickly as possible and as much in advance of the three months promised delivery as possible.

'We endeavored to secure a larger down payment from the Norway-Pacific people but they advised us that they were making all of their purchases on 10% and as they have a good financial rating and are responsible people, we accepted a 10% down payment from them and are sending you a down payment of a like proportion.

'Kindly acknowledge receipt of this order and advise us when you expect to make shipment.

'Yours very truly, A. H. Cox & Co., Inc.,

'By Geo. O. Kretsinger.'

Before alluding to the further facts, we desire to observe that in the foregoing letter respondent informed appellant that it (respondent) had obtained a signed order for the tables in question, and that it inclosed its check for the 10 per cent. down payment, leaving a balance due appellant of $13,680, which, it was stated, it would be in order for appellant to draw upon respondent for with bill of lading at the time of shipment.

One table was shipped on January 13, 1919, one on January 22, 1919, one on February 10, 1919, and one on March 5, 1919.

On January 21, 1919, respondent wrote appellant concerning the shipbuilding conditions after the cessation of the war, and asked appellant to make some concession on the price of the four tables. In answer to that letter, on January 30, 1919, appellant wrote respondent asking what respondent would consider a fair adjustment. Replying to that letter, respondent wrote on February 11, to appellant, asking for a discount of at least 12 1/2 per cent. on the purchase price of the tables. Answering that letter, appellant wired respondent on March 3, 1919, as follows:

'We accepted your order nineteen-fifty at four thousand dollars per table less five per cent. In order to get ready cash quick will accept your check at four thousand per table less ten per cent., if settled at once. Advise.'

On March 4, 1919, respondent wired appellant:

'Your telegram recd two tables have arrived and been delivered but not paid for we will accept your proposition of ten percent and remit at once.'

Two days later, on March 5, 1919, respondent wrote appellant as follows:

'Norbom Engineering Co, Derby, Pa.--Gentlemen: Referring to your telegram Mar. 3 and our wire 4th. Norway-Pacific were unable to take up our draft on presentation and we have accordingly accepted your proposition allowing us ten percent on this order and we enclose herewith our check covering balance due on these tables which have arrived. It appears that we will have to carry them.

'One draft for third table is now in the bank awaiting the arrival of the machine and would request that you authorize bank here to accept reduction of $200.00 from face of the draft now here and in drawing the draft for the last table, please have the deduction made before drawing, if it is not already on the way.

'We have taken up the draft at the bank for the second machine which has arrived.

'Yours

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