Porter v. Baretich

• Decision Date: 06 September 1929
• Docket Number: 21852.
• Parties: PORTER v. BARETICH et ux.
• Court: Washington Supreme Court

280 P. 78

153 Wash. 679

PORTER v. BARETICH et ux.

No. 21852.

Supreme Court of Washington

September 6, 1929

Department 1.

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

Action by Harry W. Porter against John M. Baretich and wife, doing business as the Olympia Café. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

Thomas L. O'Leary, of Olympia, for appellants.

Frank P. Christensen and Phil. K. Eaton, both of Olympia, for respondent.

BEALS J.

In his complaint in this action, plaintiff alleges that one Perry E Joy, February 17, 1927, sold to defendants a cash register at the reasonable and agreed price of $415.25; that defendants were given credit on the purchase price of the new machine in the sum of $102.75 for an old machine turned in by defendants and for a cash payment of $37.50; that thereafter the Remington Cash Register Sales Association, Inc., a Washington corporation (in which Perry E. Joy, his father, and a brother were interested and which was the local sales agent of the manufacturer of Remington cash registers) succeeded to the rights of Perry E. Joy in and to the contract between him and defendants, and that thereafter the contract was assigned to plaintiff; that the sum of $275 is due plaintiff on account of the purchase of the cash register, for which amount judgment was demanded. A copy of the contract which plaintiff alleged defendants entered into for the purchase of the cash register was attached to plaintiff's complaint as an exhibit.

Defendants answered admitting the signing of a writing concerning the purchase of the cash register, alleging that they were unable to say whether or not the writing pleaded by plaintiff was the one signed, as no copy thereof was ever delivered to defendants. The answer continued with denials of the material allegations of plaintiff's complaint and by way of an affirmative defense alleged that Perry E. Joy, in negotiating with defendants for the sale to them of the cash register represented himself to be the agent of the Remington Cash Register Company, Inc., of Ilion, N. Y., a manufacturer of cash registers; that defendants believed they were dealing directly with the manufacturer and that Mr. Joy agreed that his principal would service the cash register sold to defendants, without expense to defendant, for the period of one year; that the cash register selected by defendants was subsequently delivered to them; that the same was unsatisfactory; and that certain appliances and attachments, which it was agreed would be delivered with the cash register, were not delivered. Defendants in their answer prayed for a judgment of dismissal.

The action proceeded regularly to trial and resulted in a judgment in favor of plaintiff for the full amount sued upon. From this judgment defendants appeal.

Mr. Perry E. Joy, called as a witness on behalf of respondent, testified to the negotiations between himself and appellant John Baretich, and on cross-examination admitted that the cash register which Mr. Baretich purchased had been his (the witness') individual property, and was not the property either of the manufacturer or of the local sales agency, a corporation of which the witness was an officer. This testimony was in line with the allegation of respondent's complaint that the cash register had been sold to defendants by Perry E. Joy. The memorandum of...