Robinson v. Wolverton Auto Bus Co.

• Decision Date: 22 June 1931
• Docket Number: 22746.
• Citation: 300 P. 533,163 Wash. 160
• Parties: ROBINSON v. WOLVERTON AUTO BUS CO.
• Court: Washington Supreme Court

300 P. 533

163 Wash. 160

ROBINSON v. WOLVERTON AUTO BUS CO.

No. 22746.

Supreme Court of Washington

June 22, 1931

Department 2.

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by J. S. Robinson, as receiver of Sound Ferry Lines, Inc. against the Wolverton Auto Bus Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Cleland & Clifford, of Olympia, for appellant.

Harroun Robinson, Maloy & Shidler, of Seattle, for respondent.

BEALS J.

This action was instituted by J. S. Robinson, as receiver of Sound Ferry Lines, Inc., a corporation, against Wolverton Auto Bus Company, a corporation (now by change of corporate name Olympic Peninsula Motor Coach Company), for the purpose of recovering judgment for the difference between the amount actually paid by defendant, between specified dates, to Sound Ferry Lines, Inc., for transportation of defendant's autostages across Puget Sound and the amount fixed for such transportation in a tariff theretofore filed by Sound Ferry Lines, Inc., with the Department of Public Works.

After the institution of the action, Mr. Robinson was discharged as receiver, and the parties have stipulated that Sound Ferry Lines, Inc., a corporation, may be substituted as plaintiff herein. Upon this stipulation it is ordered that the substitution therein provided for be made.

Matters connected with the subject of this litigation were considered by this court in the cases of Wolverton Auto Bus Co. v Robinson, 151 Wash. 67, 274 P. 1056, 1059, and Puget Sound Navigation Co. v. Department of Public Works, 157 Wash. 557, 289 P. 1006, the latter opinion having been adhered to by a majority of this court sitting en banc, 295 P. 949. Reference is made to these opinions for an extended statement concerning the subject-matter of this litigation, which concerns the right of plaintiff company to collect from defendant the difference between the lesser amount paid by defendant and accepted by plaintiff for transporting stages across Puget Sound, and the amount fixed by plaintiff's tariff above referred to as the cost of carriage for each stage.

Trial of the action to the court sitting without a jury resulted in judgment in plaintiff's favor for the amount of $6,346.38, which it is admitted is the amount due, if under the law plaintiff is entitled to recover at all upon the cause of action set forth in its complaint. Defendant appeals from the judgment, contending that it is not liable to plaintiff in any amount.

In the first place, appellant pleaded affirmatively in its answer, and now contends, that exclusive jurisdiction concerning the controversy is vested in the Department of Public Works of Washington. This matter was determined by this court contrary to appellant's contention in the case of Puget Sound Navigation Co. v. Department of Public Works, supra, and, this opinion having been adhered to by a majority of the court sitting en banc, it must now be held as determinative of this question against appellant's contention.

In the next place, appellant contends that the amounts paid to respondent by appellant and accepted by respondent for transportation of appellant's stages were accepted by respondent in full satisfaction and discharge of all claims on the part of plaintiff for such service, and constituted an accord and satisfaction, which in law operates to prevent respondent...