Seattle Brewing & Malting Co. v. Donofrio

• Decision Date: 05 January 1904
• Citation: 34 Wash. 18,74 P. 823
• Court: Washington Supreme Court
• Parties: SEATTLE BREWING & MALTING CO. v. DONOFRIO.

74 P. 823

34 Wash. 18

SEATTLE BREWING & MALTING CO. v. DONOFRIO.

Supreme Court of Washington

January 5, 1904

Appeal from Superior Court, King County; Geo. E. Morris, Judge.

Action by the Seattle Brewing & Malting Company against James Donofrio. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Sachs &amp Hale, for appellant.

Preston Carr & Gilman, for respondent.

FULLERTON C.J.

This action was brought by the respondent, who was plaintiff below, against the appellant, to recover the sum of $1,435.70, alleged to be balances due upon two certain accounts--the first, for beer sold and delivered by the respondent to the appellant; and the second, for moneys advanced by it to his use. The appellant denied the indebtedness alleged in the complaint, and, by way of a further and separate answer, alleged that at times prior to the 12th day of June, 1902, he became indebted to the respondent in various sums, which on that day aggregated, in principal and interest, the sum of $3,008, and that they then had a settlement of their accounts, by the terms of which the respondent agreed to, and did, purchase of him certain personal property and property rights and interests then owned by him, at the stipulated price of $4,000, and agreed as a consideration therefor, to cancel the indebtedness above mentioned, and pay him the difference ($992) in cash. He further alleged that pursuant to such agreement and sale he delivered to the respondent the personal property, interests, and rights mentioned, and that the appellant has ever since retained the same, but has neglected, failed, and refused to pay him the difference agreed upon. The answer was put in issue by appropriate denials, and on the issues thus made a trial was had, resulting in a verdict and judgment in favor of the respondent for $448.

It is first contended that the evidence conclusively shows a settlement between the parties as alleged in the answer of the respondent, and consequently the court erred in refusing to grant the appellant a new trial. But we think the appellant mistakes the effect of the evidence. While it is clear that the parties went so far as to agree between themselves upon the balances due from one to the other, and upon the amount that was to be paid as the purchase price of the property, and made an actual transfer of the same, yet it is equally clear that they failed to agree, when they came to close the transaction, as to whom the balance due on the purchase price should be paid, and that the attempted settlement was then abandoned, and the property theretofore transferred returned by the respondent to the person from whom they received it.

The appellant argues, also, that there was no sufficient cause for an abandonment on the part of the respondent, and that it never returned the property to him, but on both of these questions we think there was abundant evidence to sustain the verdict. The appellant was conducting a saloon, and the property agreed to be sold consisted of his entire stock of goods, fixtures, and business. It was shown that he was indebted in some $1,500, and the respondent conceived that the sale would be void unless the purchase price should be paid upon these debts, in accordance with the statute relating to the sale of stocks of goods in bulk. It desired therefore, to pay the balance on this indebtedness, while the appellant demanded that it be paid to him personally, and refused to sign a bill of sale until it was so paid. We think this clearly justified the respondent in refusing to complete the transaction. On the other contention, the evidence was that the property was returned to the nephew of the appellant, who had charge of the appellant's business immediately prior to the original transfer, and the person from whom the appellant received the property. While there was some question raised as to his right to receive it on behalf of the appellant, still it...