Steward v. C.M. Kopp Co.

• Decision Date: 21 April 1925
• Docket Number: 19053.
• Citation: 234 P. 1053,134 Wash. 150
• Court: Washington Supreme Court
• Parties: STEWARD v. C. M. KOPP CO.

234 P. 1053

134 Wash. 150

STEWARD v. C. M. KOPP CO.

No. 19053.

Supreme Court of Washington

April 21, 1925

Department 1.

Appeal from Superior Court, Yakima County; Nichoson, Judge.

Action by William Steward against the C. M. Kopp Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James S. Freece, of Yakima, for appellant.

Snively & Bounds, of Yakima, for respondent.

BRIDGES J.

The plaintiff sought judgment against the defendant on account of an alleged sale of apples. The defendant by his answer denied that there had been a sale, and affirmatively alleged that the apples had been consigned to him, and that as consignee he had taken proper care of them, and had used his best endeavors to dispose of them under the most favorable circumstances and for the best obtainable price, and that he had fully accounted to the plaintiff for the sales price (less certain expenses and commissions) except as to $25 which amount he tendered into court for plaintiff, and prayed to be relieved of further liability. There was a verdict for the plaintiff in the sum of $500, and this appeal results. The jury found there had been a sale, and not a consignment.

The chief ground for reversal is the giving of two instructions the first one being to the effect 'that the burden is upon the defendants to prove by a fair preponderance of the evidence the allegation relative to the contention they make that the sale was made on consignment * * * that the agreement was for a consignment basis,' and the second instruction was concerning the duties of the consignee in the event the jury should conclude that there had been a consignment rather than a sale. The court had previously told the jury that the plaintiff had the burden of proving his allegation that there had been a sale. Appellant's argument is that the burden of proof was on the respondent at all times, and never on him, and that it was error for the court to instruct otherwise. His contention is that his affirmative allegations and proof to the effect that the transaction was one of consignment amounted to nothing more than a denial that there had been a sale, and that all of the affirmative matter of the answer could have been proved under the general denial.

It must be conceded that generally speaking appellant's contention is correct, that there would be no burden on him to prove that the transaction was one in consignment in order to disprove ...