Roberts v. J. & H. Goodwin, 23345.

• Citation: 166 Wash. 382,7 P.2d 8
• Decision Date: 19 January 1932
• Docket Number: 23345.
• Court: United States State Supreme Court of Washington
• Parties: ROBERTS v. J. & H. GOODWIN, Limited.

7 P.2d 8

166 Wash. 382

ROBERTS v. J. & H. GOODWIN, Limited.

No. 23345.

Supreme Court of Washington

January 19, 1932

Department 1.

Appeal from Superior Court, Yakima County; A. W. Hawkins, Judge.

Action by R. J. Roberts against J. & H. Goodwin, Limited. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Moulton & Powell, of Kennewick, for appellant.

La Berge, Cheney & Hutcheson, of Yakima, for respondent.

PARKER J.

The plaintiff, hereinafter called Roberts, commenced this action in the superior court for Yakima county, seeking recovery from the defendant, hereinafter called Goodwin, upon one cause of action, for the alleged conversion by Goodwin of 1,021 boxes of Winesap apples alleged to belong to Roberts; and upon a second cause of action, for the alleged conversion by Goodwin of 756 boxes of Rome Beauty apples alleged to belong to Ira C. Hawley, which was by him assigned to Roberts Before the commencement of this action. Roberts prayed for judgment against Goodwin in the sum of $2,313, the alleged value of the 1,021 boxes of apples, and in the sum of $1,192, the alleged value of the 756 boxes of apples. Goodwin answered, denying ownership of the apples in Roberts and Hawley. Goodwin, by an affirmative defense claimed a lien upon all of the apples to secure loans of money owing by K. Lane Johnson to Goodwin, the lien being evidenced by negotiable warehouse receipts for the apples issued to Johnson and assigned to Goodwin, and the loan being evidenced by promissory notes; and also claimed the right to sell the apples, which right was accordingly exercised applying the proceeds of the sale in partial satisfaction of the loan indebtedness of Johnson. Goodwin also, as a second affirmative defense to the second cause of action, alleged the pendency of another action between Hawley and Goodwin in the superior court for Benton county, involving, as it is claimed, the same controversy as is here involved in the second cause of action. Roberts replied by appropriate denials to the affirmative defenses of Goodwin. The trial judge, viewing the issues so made, ruled that the cause became one of equitable cognizance. The trial proceeded accordingly, though the trial judge impaneled a jury to aid him in an advisory capacity in determining questions of fact, should he find the need of such aid. At the conclusion of the evidence introduced in behalf of Roberts. counsel or Goodwin moved for judgment denying relief as prayed for. This motion was by the court granted, and final judgment of dismissal was rendered accordingly, from which Roberts has appealed to this court.

During and prior to the times in question, Roberts and Hawley were each growers of apples; their orchards being near White Bluffs, in Benton county. During and prior to the times in question, Goodwin was an English concern, dealing in apples, maintaining its headquarters for its business in this state at Yakima. During and prior to the times in question, K. Lane Johnson was a broker, maintaining his place of business at Yakima, engaged in making contracts with growers of apples, while their crops were maturing, for the marketing of such crops, and making cash advances to growers to aid them in financing their growing, caring for, and gathering of such crops.

In the spring of 1928, Roberts and Johnson entered into a contract, reading, in so far as need be here noticed, as follows:

'This Memorandum of Agreement, Made and entered into this 4th day of May, 1928, by and between R. J. Roberts, as party of the first part, hereinafter called the Shipper, and K. Lane Johnson, Yakima, Washington, as party of the second part, hereinafter called the Company.

'Witnesseth: That in consideration of the mutually dependent promises as hereinafter stated, the parties agree:

'First: That the Shipper agrees to and does hereby employ the Company as his agent in the marketing and selling of all of the hereinafter described crop or crops of fruit now growing on or to be harvested during the season of 1928 from the ranch owned or operated by the Shipper consisting of * * *

'It is the intention of this agreement that the Company shall market and sell the entire crop of fruit enumerated above and to be grown upon said premises and harvested therefrom during the season of 1928. In rendering its services to the Shipper as agent in the marketing and selling of said fruit the Company shall and will do and perform every necessary and proper thing properly and expeditiously to handle, market and sell said fruit to the best of its ability and to obtain the best price it is able to obtain; Provided however, that the Company shall be the sole and exclusive judge of the manner and time of selling said fruit and the price to be taken therefor.

'Second: That the Company accepts such employment by the Shipper and agrees to and will do to the best of its ability and according to its experience and best judgment, market and sell said fruit for the shipper.

'Third: That for the services to be performed by the Company for the shipper in the marketing and selling of said fruit the Shipper agrees to and will pay the Company, and the Company agrees to and will accept and receive as its compensation ten cents per packed box.

'Also a reasonable charge for services performed in addition to selling and marketing, such as packing, loading and labeling, warehousing, storage, etc. It is expressly understood and agreed that the Company shall have the right and privilege to have any and all remittances from the sale of said fruit made directly to it and that it shall have the right to deduct from such remittances its own compensation for its services as above mentioned and any other advances made by it for said Shipper's account.

'Fourth: That the shipper shall deliver all of said fruit to the Company on board cars or at the Company's warehouse and thereafter the Company shall have the entire and exclusive charge of handling, marketing, and selling said fruit. * * *

'Fifth: That it is acknowledged by the Shipper that the Company has this day paid to him as an advance upon this contract, the sum of One Dollar. Three Hundred ($300.00) Dollars and further agrees to advance Three Hundred ($300.00) for thinning when needed.

'Sixth: That it is expressly understood and agreed that all sums paid by the Company to the Shipper or for his benefit, as advances or otherwise, and all sums now or hereafter owing to the Company from the Shipper for spray materials, supplies or other commodities sold to him, shall be retained by the Company out of the proceeds from the sale of the above mentioned crops, and if said proceeds are not sufficient to cover said sums so advanced or owing, then the balance due the company shall be paid to the company by the Shipper in cash. * * *'

We have italicized portions of the contract to be particularly noticed. The contract was executed by...