Nordeen Iron Works v. Rucker

• Decision Date: 04 January 1915
• Docket Number: 12085.
• Citation: 83 Wash. 126,145 P. 219
• Court: Washington Supreme Court
• Parties: NORDEEN IRON WORKS v. RUCKER et al.

145 P. 219

83 Wash. 126

NORDEEN IRON WORKS v. RUCKER et al.

No. 12085.

Supreme Court of Washington

January 4, 1915

Department 2. Appeal from Superior Court, Snohomish County; Guy C Alston, Judge.

Action by the Nordeen Iron Works against B. J. Rucker and others. From an order of the trial court granting plaintiff's motion for a new trial, defendants appeal. Affirmed.

Coleman Fogarty & Anderson and W. P. Bell, all of Everett, for appellants.

Jesse H. Davis, of Everett, for respondent.

MOUNT J.

This appeal is from an order granting a motion for a new trial. The plaintiff brought the action to recover the reasonable value of certain articles of mill machinery alleged to have been ordered by the defendants from the plaintiff and thereafter manufactured by the plaintiff and delivered to and accepted by, the defendants. The answer was a general denial. The case was tried to the court with a jury. A verdict was returned in favor of the defendants. The plaintiff then filed a motion for a new trial on the ground of the insufficiency of the evidence to justify the verdict, errors in law occurring at the trial, and erroneous instructions given by the court. The trial court granted this motion upon the latter ground. The defendants have appealed from that order.

Upon the trial of the case there were three well-defined issues as follows: (1) Were the goods ordered from the plaintiff by the defendants? (2) Were the goods accepted by the defendants? (3) The reasonable value of the goods. These questions were all disputed in the evidence.

The court gave the following instruction to the jury:

'You are instructed that, if you find by a preponderance of the evidence that S. J. Pritchard was, on or about the 22d day of May, 1913, authorized to purchase, for and on behalf of defendants, the machinery mentioned in plaintiff's complaint herein, and that he did, on or about said date, order from plaintiff, for and on behalf of defendants, said machinery, and that, pursuant to said order, the plaintiff manufactured said machinery and delivered the same to said defendants, you must find for the plaintiff, unless you further find that the plaintiff charged for the same a price in excess of the reasonable value of said machinery, as hereinafter instructed.'

The court also instructed the jury as follows:

'The court instructs the jury that, if you find by a preponderance of the evidence in this case that the machinery and supplies mentioned in the plaintiff's complaint in this action could have been purchased by said defendants in the open market for a sum considerably less than the amount claimed to be due by the plaintiff for such machinery at the time it is alleged the order was given therefor, then you are further instructed that you may take this fact into consideration in determining whether or not there was a contract entered into between the plaintiff and defendants, as alleged in plaintiff's complaint herein.'

The trial court was of the opinion that these instructions were wrong, and of this conclusion we have no doubt; for he said to the jury that, if the machinery was ordered by the defendants and delivered to the defendants, the plaintiff was entitled to recover, unless the jury found 'that the plaintiff charged for the same a price in excess of the reasonable value of said machinery, as hereinafter instructed.' There was no instruction thereafter which modified that instruction. It is too plain for argument that this instruction was erroneous; because, if the machinery was ordered by the defendants and delivered to and accepted by the defendants, the plaintiff was entitled to recover the reasonable value...