Schoenwald v. Diamond K. Packing Co., 26757.

• Decision Date: 30 November 1937
• Docket Number: 26757.
• Citation: 73 P.2d 748,192 Wash. 409
• Parties: SCHOENWALD et al. v. DIAMOND K PACKING CO.
• Court: Washington Supreme Court

73 P.2d 748

192 Wash. 409

SCHOENWALD et al. v. DIAMOND K PACKING CO.

No. 26757.

Supreme Court of Washington

November 30, 1937

Department 1.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Action by E. Schoenwald and another against the Diamond K Packing Company, wherein John J. Kennett was made a party plaintiff. From the judgment, the plaintiffs appeal.

Affirmed in part, and reversed and remanded with directions in part.

John J Kennett, Revelle, Revelle & Kells, and Edward M. Hay, all of Seattle, for appellants.

Allen Froude & Hilen, of Seattle, for respondent.

BLAKE Justice.

The plaintiff E. Schoenwald and defendant entered into the following contract:

'This agreement made this 28th day of February, 1934 between the Diamond K Packing Company, a corporation first party, and E. Schoenwald, second party,

'Witnesseth:----

'That, whereas the second party has rendered valuable services to the first party and has been instrumental in securing for first party a certain fish-trap location near Snow Pass, located about 1 1/4 miles westerly from Point Nesbit, on Zarembo Island, in the Territory of Alaska; and

'Whereas said services were rendered by second party under a definite understanding as to compensation therefor, and it now being desirable to reduce the agreement in respect thereto to writing; now, therefore,

'In consideration of the services rendered by second party for first party in obtaining said fish-trap location.

'It is agreed between the parties hereto as follows:

'First party shall install a fish-trap at the site of said location, after having obtained the necessary permits therefor, and said first party shall cause the erection and installation of said trap, the same to be completed in sufficient time to take care of the 1934 fish run, and said first party shall maintain said trap as long as the same location shall be open to it, unless said first party shall notify second party on or Before December 20th that it will not construct or operate said trap the following year, and second party shall have then the right to make arrangements for the construction and maintenance of this trap for the benefit of both parties under this agreement.

'If said location should be closed and later restored to it, first party shall make any necessary repairs to the trap, and maintain it, the same as though it had never been closed.

'First party agrees to advance the funds required for the construction, maintenance, operation and repair of said trap, one-half of said expense to be refunded to said first party as hereinafter provided.

'The account for this trap shall be charged with the direct expense of constructing, maintaining, operating and repairing the same, including licenses, permits and taxes, etc., except that no charge shall be made for the use of the pile-driver or other floating equipment.

'It is understood and agreed that the second party shall have a one-half (1/2) interest in said fish-trap and in all of the fish caught therein, and that the fish taken from said trap shall be counted separately, at the elevator of the cannery, by the first party, and a true and accurate record kept of each delivery of fish to said cannery. The first party (being the owner of a fish cannery) agrees to buy from the second party, and the second party agrees to sell to the first party, all of his share of the fish caught in said trap, to-wit: one-half (1/2) of the total catch of said trap, and first party agrees to pay to the second party the following prices for said fish: For red salmon first party agrees to pay a price which shall be five cents (5¢) per fish less than the average price paid by the industry in that locality to gillnet fishermen for Stikine red salmon. The price for pink salmon, dog salmon and cohoes shall be the price generally paid in the Clarence Straits district by representatives of responsible canneries for trap fish of said varieties during the season in which they are caught. First party further agrees that it will endeavor to sell any king salmon which may be caught in the trap, to buyers of fresh fish, at the prevailing market price.

'First party agrees that on or Before October 10th, 1934, and the 10th of October of each and every year thereafter, it will render to second party a complete detailed statement of the operations of said fish-trap, which statement shall show the catch of said trap and the cost, in detail, of the construction, maintenance, operation and and repair of said trap for said year.

'One-half (1/2) of the cost of the licenses, permits, materials, taxes and/or construction of said trap, and of the maintenance, operation and repairs of said trap, for the current year, and for each succeeding year said trap is constructed or repaired, maintained or operated, shall be deducted from the amount due the second party for his half of the fish, as determined on the scale of prices above mentioned, and the first party agrees to pay to the second party the amount due him, after such deductions, as provided in this contract, on or Before the 15th day of October of each and every year.

'The first party further agrees that it will tend the fish-trap herein mentioned, during the fishing season, in such a manner that its fishing efficiency will not be impaired at any time, and to this end agrees that said trap shall have a preference, in being tended, over all other traps operated by first party, weather permitting.

'Should the cost of construction, maintenance, repair and operation of said trap in any year exceed the value of fish caught in said trap for that year, first party shall be reimbursed by second party for one-half (1/2) of said deficit out of the second party's share of the catch of fish of subsequent years.

'It is further agreed that if the first party should at any time be deprived of the use of this trap site and the same shall be thereafter restored to it, such restoration shall ipso facto restore second party's half interest in said trap, and after any such restoration second party's rights shall be governed and determined by this agreement the same as though first party had never been deprived of the use of said trap.

'First party further agrees to insure all employees on said trap and on any equipment used in and for the construction, maintenance, repair and operation of said trap on the fullest liability coverage obtainable, and in any event to the extent of the Alaska Workmen's Compensation act insofar as said insurance is procurable, and to make any payments required to the Territory of Alaska, or any political subdivision thereof, on account of the operation of said trap, and any payments so made and the cost of insurance, above referred to, shall be included in and considered a part of the maintenance cost of said trap and so charged in maintenance cost.

'The first party agrees to construct and to at all times maintain said trap in a careful and prudent manner, and to exercise due care for the safety of all employees used in the operation of said trap, and any liability or claim for damages which could not be covered by the insurance herein provided for shall be the equal liability of the first and second parties.

'Should the first party fail or neglect to insure all employees as mentioned above on said trap or on any equipment used in and for the construction, maintenance, repair and operation of said trap, any suits that may be brought for damages which could have been covered by insurance arising or claimed to have arisen out of the construction, maintenance or operation of said trap, shall be defended by first party, at its own cost.

'Executed in triplicate at Seattle, Washington, this 28th day of February, 1934.

'Diamond K Packing Company,

'First Party,

'By Karl Theile, [Seal]

'President,

'Attest: Celia McL. Theile,

'Secretary.

'E. Schoenwald,

'Second Party.'

Pursuant to the contract, the defendant operated the fish trap during the seasons of 1934, 1935, and 1936. Plaintiff, being dissatisfied with the accounting made by defendant, commenced this action in the spring of 1936 for an accounting of the catch for the years 1934 and 1935. By supplemental complaint, he called for an accounting of the catch in 1936. December 19, 1936, while the action was pending, defendant notified plaintiff that it would not operate the trap during the season of 1937, and demanded that plaintiff, pursuant to the terms of the contract, make arrangements for the construction and maintenance of the trap during the season of 1937, 'for the benefit of both parties to said agreement as in said agreement provided.'

Thereupon plaintiff filed a supplement to his complaint, pointing out that the contract contains no provision relating to his operations upon his availing himself of the right to construct and maintain the trap, other than that he shall act 'for the benefit of both parties under this agreement.' He alleged that the defendant asserted, among other things, that, although it would not operate the trap during the season of 1937, nevertheless plaintiff was bound, in case he operated, to sell to the defendant all the fish taken, at the prices set out in the agreement. Plaintiff asked that the court construe the contract and 'decree the respective rights and duties of the parties' in the contingency of his operating the trap.

The case was tried on the issues presented by the complaint as supplemented. (John J. Kennett, having acquired one-half of plaintiff's interest under the contract, was made a party plaintiff.) On the accounting feature of the case, the court entered judgment for plaintiff. From this part of the judgment no appeal is taken, except as to the matter of allowance of costs, which later will be noticed more particularly.

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