Parks v. Elmore

• Decision Date: 08 August 1910
• Citation: 59 Wash. 584,110 P. 381
• Parties: PARKS v. ELMORE.
• Court: Washington Supreme Court

110 P. 381

59 Wash. 584

PARKS v. ELMORE.

Supreme Court of Washington

August 8, 1910

Department 1. Appeal from Superior Court, Chehalis County; Ben Sheeks Judge.

Action by J. W. Parks against S. Elmore. Judgment for plaintiff, and defendant appeals. Affirmed.

C. W. Hodgdon and C. W. & G. C. Fulton, for appellant.

John C Hogan, for respondent.

FULLERTON J.

On August 14, 1907, the appellant and respondent entered into a contract evidenced by the following writings:

'Astoria Ore., August 14, 1907. Messrs. Elmore & Co., Astoria, Oregon--Gentlemen: In regard to our conversation this afternoon I hereby make you the following proposition with reference to the fishing on Gray's Harbor and its tributaries for the season of 1907. If I purchase any salmon commonly known as the merchantable black salmon from canneries in which you are interested on Gray's Harbor, I will pay you 3-4 cents per lb. over and above the regular cannery price and if you purchase any of the same class salmon from me you will pay me 1-2 cents per lb. over and above the regular cannery price. Fish to be weighed when delivered to either party and whatever difference in number of pounds may be remaining to be settled on basis of 21 pounds to the fish. Cannery prices to mean prices as paid by the canneries on Gray's Harbor. If I obtain any silversides from you I am to allow 5 cents per fish over and above prices paid by the canneries on Gray's Harbor during the season of 1907, and if you obtain any silversides from me you are to allow me the same profit, viz., 5 cents per fish over and above the regular price as paid by the canneries on Gray's Harbor. The quantity of silversides that I will take from you is not to exceed one silverside for every two dog salmon I deliver you. On dog salmon you are to take my entire catch at a price of ten cents (10c) per fish. Fish delivered by you to me to be taken from your wharf, and fish delivered by me to you to be taken from my wharf at Aberdeen. Owing to the fact that my business makes it a necessity for me to have fish at certain times during the season it will be necessary for you to deliver me fish when I call for them, provided always you have them on hand. Whatever surplus fish I may have and you may require will be delivered to you at prices as ruling above. This agreement to be in force for season of 1907 only. Yours very truly, Jas. W. Parks. Accepted and entered into as a contract this 14th day of August, 1907. S. Elmore & Co., By W. W. Ridehalgh.'

'Astoria, Ore., August 14, 1907. Messrs. Elmore & Co., Astoria, Oregon--Gentlemen: Referring to the contract entered into this day by you and between ourselves, I hereby agree that as far as the dogs are concerned that in case of a heavy run of dog salmon on Gray's Harbor and your gear and the gear of any of the canneries you may be interested in is limited to a certain quantity of fish per boat that I will limit my boats to the same quantity and deliver only that quantity. Yours very truly, Jas. W. Parks.'

On August 30, 1909, the respondent began the present action against the appellant, alleging a breach of the contract on the part of the appellant in that the appellant refused to take any part of his catch of dog salmon during the season of 1907, which amounted to 15,550 fish, and that in consequence he was obliged to throw the same overboard, save a certain quantity which he was able to dispose of at a price of $215.16. The appellant answered the complaint admitting the execution of the contract, but denied any breach thereof. He also set up three affirmative defenses: First, that the contract was executed and delivered in the state of Oregon, and was by the laws and decision of that state void and unenforceable, because contrary to the statute of frauds therein; second, that the contract was void under the laws and decisions of the courts of the state of Oregon for want of mutuality, in that it contained no binding obligation on the part of the respondent; and, third, that there had been a rescission of the contract on the part of the respondent. The affirmative allegations in the answer were put in issue by a reply, and a trial had before the court sitting without a jury, which resulted in a judgment in favor of the respondent for the sum of $1,422.54. This sum was reached by deducting the sum of $215.16 from the value of the fish at the contract price, and allowing interest on the remainder at the legal rate from December 25, 1907.

Taking up the assignments of error in the order in which the appellant presents them, the first to be noticed is the contention that the contract is void under the statute of frauds of the state of Oregon. The statute of that state provides that an agreement for the sale of personal property at a price of not less than $50 is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged or by his lawfully authorized agent, or unless the buyer accept and receive some part of such personal property or pay at the time some part of the purchase money. B. & C. Comp. Or. § 797. The reason given for the contention that the contract in question falls within this statute is that it fails to express the consideration for the contract. But to comply with the rule of the statute the consideration need not be stated in express terms. It is sufficient if from the whole writing it appears with reasonable clearness what the consideration was. It does so appear we think in the writing before us. It is evident that it was the purpose of the parties to agree upon a mutual course of dealing with reference to certain fish procured by each during the fishing season of 1907. To that end they made mutual promises which are set forth in the writing, and the promise on the part of the one furnished a consideration for the promise on the part of the other. 'In those jurisdictions where it is necessary to state the consideration for the promise in the writing, the consideration must clearly appear therefrom, but no special form is required for the statement; the consideration need not be expressed in so many words, but may be implied from the instrument. Thus if it appears from the writing that the promisee agrees to do or to forbear to do some act in consideration of the promise, the consideration is sufficiently expressed.' 20 Cyc. 266. Moreover, we think it may be questioned whether a contract of this nature is within the statute of frauds, as construed by the courts of Oregon. In Hientz v. Burkhard, 29 Or. 55, 43 P. 866, 31 L. R. A. 508, 54 Am. St. Rep. 777, it was held that a contract concerning personal property which did not exist in specie at the time it was entered into, but was required to be thereafter manufactured and brought into being, was not within the statute. On similar principles it would seem that a contract to sell fish in the sea which must be caught before the contract could be fulfilled would fall within the same rule.

The contention that the contract is void for want of mutuality is based on the asserted fact that all of the binding obligations set forth in the...