Pacific Coast Elevator Co. v. Bravinder

• Decision Date: 21 March 1896
• Citation: 14 Wash. 315,44 P. 544
• Parties: PACIFIC COAST ELEVATOR CO. v. BRAVINDER ET AL.
• Court: Washington Supreme Court

44 P. 544

14 Wash. 315

PACIFIC COAST ELEVATOR CO. v. BRAVINDER ET AL.

Supreme Court of Washington

March 21, 1896

Appeal from superior court, Spokane county; T. J. Humes, Judge.

Action by the Pacific Coast Elevator Company against B. B. Bravinder and A. E. Keats, co-partners under the firm name of Bravinder & Keats, for breach of contract. From the judgment directed by the court, plaintiff appeals. Affirmed.

Graves & Wolf, W. E. Richardson, and S. J Chadwick, for appellant.

F. T Post and A. G. Avery, for respondents.

SCOTT J.

This action was founded upon a claimed breach of the following contract, which was in writing:

"Spokane Falls, Wash. December 14th, 1891. The Pacific Coast Elevator Company agrees and hereby sells to Bravinder & Keats, 1,500 bu. wheat sacked, now in Alliance Warehouse, at Fairfield, Wash., at 85c., f. o. b. cars at Fairfield, and 28,000 bu. wheat bulk in their P. C. Co. house at Fairfield at 83c. per bu., f. o. b. cars at Fairfield, all of which is to be delivered and paid for in 30 days from date of sale, and in case such delivery is not made Bravinder & Keats agree to pay 15c. per ton per month and 10 per cent. interest per annum on such amounts as remain undelivered. [Signed] Pacific Coast El. Co., Geo. J. Morton, Supt. Bravinder & Keats.

"The above wheat is to be merchantable, and Bravinder & Keats agree to accept Fairfield 'weights and grades."'

It is conceded that the memorandum at the foot was a part of the contract. Thereafter the sacked wheat and 8,000 bushels of the bulk wheat were delivered, accepted, and paid for at various dates in the forepart of the month of April, 1892. Later in said month the defendants refused to accept any more of the wheat, on the ground that it was of a poor quality, and not the kind called for by the contract, whereupon the plaintiff brought this action to recover the difference between the then value of the wheat refused, which was alleged to be 58 cents per bushel, and the contract price. At the conclusion of the plaintiff's testimony the defendants moved the court to direct a verdict in their favor. This motion was, in effect, granted, although the court directed the jury to bring in a verdict for the plaintiff for 15 cents per ton per month upon the 8,000 bushels for such time as acceptance was delayed beyond the 30 days from the date of the contract, and 10 per cent. per annum interest on the value of said wheat. From the judgment rendered thereon the plaintiff has appealed.

The questions raised are as to what kind or quality of wheat the contract called for, and whether the burden of proof rested upon the plaintiff to show that the wheat was up to the standard called for; or whether it was incumbent on the defendants to show that it was not; and, if the burden was upon the plaintiff, was there sufficient proof to show prima facie that the wheat was of the required quality? In considering these questions, it is first necessary to determine whether the contract showed a sale at the time it was executed, or whether it was simply a contract to sell. The plaintiff contends that the operative words in the contract are "hereby sells," and that the same showed a present sale, especially when taken in connection with the provision that delivery and payment were to be made within 30 days from the "date of sale"; and further, that the provision, "in case such delivery is not made" the defendants should "pay 15 cents per ton per month and 10 per cent. interest per annum on such amounts as remain undelivered," showed that the defendants accepted the kind of wheat that was in the warehouse. The defendants contend that the contract did not show a present sale, but merely an agreement to sell 28,000 bushels of wheat free on board cars at Fairfield, because said wheat was then stored in the company's warehouse at said place, mixed with a large quantity of other wheat; and, furthermore, from the fact that it was to be "merchantable" wheat; and it is contended that this word has a local, technical meaning, which we shall further allude to in connection with another branch of the case; and also that it is evident from the contract that it was not intended that all of the wheat should be delivered at one time, but from time to time, as desired by the defendants, and that this is evidenced by the clause, "all of which is to be delivered and paid for in thirty days from date of sale, and, in case such delivery is not made, Bravinder and Keats agree to pay 15 cents per ton per month and ten per cent. interest per annum on such amounts as remain undelivered." We are of the opinion that the evident intention of the parties under this contract was not that it constituted a present sale, for the plaintiff was to segregate and weigh or measure the amount agreed to be sold, and was bound to deliver merchantable wheat, and, if the...