Tatum v. Geist

• Decision Date: 08 April 1907
• Parties: TATUM et al. v. GEIST et al.
• Court: Washington Supreme Court

89 P. 547

46 Wash. 226

TATUM et al. v. GEIST et al.

Supreme Court of Washington

April 8, 1907

Appeal from Superior Court, Clallam County; Geo. C. Hatch, Judge.

Action by H. L. Tatum and another against W. A. Geist and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Shank & Smith, for appellants.

Trumbull & Trumbull, for respondents.

MOUNT J.

Appellants brought this action to recover the contract price of a planing machine sold to respondents. The cause was tried to the court without a jury. Findings were made, and judgment entered in favor of the defendants. The plaintiffs prosecute this appeal.

The facts are as follows: On November 20, 1903, the respondents ordered a new Northwest planer from the plaintiffs' agent at Seattle. The agent agreed to have the machine forwarded from Portland, Or. Thereupon the following memorandum of agreement was entered into: '11/20/03. Terms 3% off for cash, or 1/3 down, bal. 3 mos., or 1/2 down, bal. 6 mos. Charge to W. A. Geist, Post office address Port Angeles. Ship to Port Angeles, * * * 1 26X6, 6 roll, divided roll, new Northwest. To be furnished with 1 complete set of Philbrick Matcher heads for flooring and shiplap, $1,100. Because machine is not at this store for inspection, we agree to accept return of same, free of expense, to Tatum & Bowen provided the machine is not satisfactory. Tatum & Bowen, by C. A. Taber. W. C. Geist.' In pursuance of this contract a machine was ordered from Portland, Or. It arrived in Seattle the last day of November, 1903, and was then found by appellants' agent to be a machine which had been used but it was immediately forwarded to the respondent at Port Angeles, and a letter was written by Mr. Taber, the appellants' agent, explaining that the machine had been used slightly, but that it was a new machine, and all right. This letter closed by saying: 'Kindly do what you can towards setting the machine up and putting it in operation and if you have any difficulty in starting it wire us and we will have Mr. Arper go there at once and straighten out any trouble that you have.' In due course the machine arrived at Port Angeles, and on December 7, 1903, respondents wrote to appellants, saying that, after unpacking the machine, they found some defects, and part of the flanges on the feed cone broken, and 'you understand that you sold us a new machine, and we expect that you will send us a new cone and any other parts that are defective. * * * We expect you to make it right. All we ask is fair treatment.' On January 7, 1904, respondents wrote to appellants again, calling attention to some broken knives and insufficient wrenches. On January 30, 1904, appellants sent to respondents a statement of account, and requested the amount of cash payment 'which you agreed to make upon delivery of the machine.' Respondents then wrote appellants as follows: 'In reply to yours of the 30th ult., I wish to say that evidently you have overlooked the agreement governing the purchase of the planer, or you would not ask me to sign notes with interest, and you would no doubt have received a check for part before this had I been satisfied that the planer is all right. I find that the lower cylinder collar is not trued up, thus letting it go back and forth, and another thing is the feeding of the planer is very poor. At times it won't feed a 4"' piece of flooring strips, and I have been trying in several ways to adjust it, but up to the present time I have not succeeded, and I am beginning to think that possibly the machine has been refused by other parties for that reason. If you know of any way that might do some good, I would be glad to hear from you. I would also say that you have failed to send me a new feed cone. * * * We have no five-eighths wrench, and no one-half socket wrench to tighten up the side head pulleys with, and the wrench sent to...