Thorndike v. Hesperian Orchards, Inc.

• Decision Date: 20 August 1959
• Docket Number: No. 34820,34820
• Citation: 54 Wn.2d 570,343 P.2d 183
• Court: Washington Supreme Court
• Parties: David A. THORNDIKE, Don Thorndike, Ted Thorndike and Kenneth Gausman, d/b/a D. A. Thorndike & Sons, Respondents, v. HESPERIAN ORCHARDS, INC., Appellant.

Page 570

54 Wn.2d 570

343 P.2d 183

David A. THORNDIKE, Don Thorndike, Ted Thorndike and Kenneth Gausman, d/b/a D. A. Thorndike & Sons, Respondents, v. HESPERIAN ORCHARDS, INC., Appellant.

No. 34820.

Supreme Court of Washington, Department 2.

Aug. 20, 1959.

Earl W. Foster, Wenatchee, for appellant

O'Connor & O'Connor, Wenatchee, for respondents.

FOSTER, Judge.

Appellant, defendant below, appeals from a judgment against it for a sum found to be due under the terms of a written contract.

On a contract for the packing and sale of their apple crop, respondents, plaintiffs below, sued for the difference between the contract price and the amount paid by appellant to the respondents, which difference the court found to be $10,271.73.

Respondents are orchardists near Oroville, Washington, and grow Golden Delicious apples. Appellant's business is to market such fruit. By written contract, the appellant agreed to pack and sell the respondents' apples. It also agreed to operate two pools for the marketing of such apples, one at the plant owned by the respondents in Oroville, and the other at its Tu Rivers packing house at Olds Station near Wenatchee, Washington. The pools were to be composed of similar apples produced by other orchardists, and the appellant agreed to pay respondents the average pool price.

The Golden Delicious variety was extra fancy, specially packaged, and commanded a premium price. The appellant admitted the contract, and, in its answer, pleaded as an affirmative defense that the respondents had breached the contract and that, by a subsequent agreement, because the respondents' apples were substandard, the parties agreed to withdraw the respondents' apples from the pool and to market them scparately, in consequence of which they sold at a reduced figure.

There was no pretrial order. The trial took seven days, and all of the evidence was brought here in a statement of facts containing more than 728 pages. The contract being admitted and the quantity of fruit delivered by the respondents to the appellant under the contract being admitted, the issue for trial was the affirmative defenses, upon which the appellant had the burden of proof.

The court found that the appellant had not sustained this burden and resolved all of the facts against the appellant. The court specifically found that the contract required:

"That the fruit covered by this contract shall be pooled and sold with fruit of like grades and varieties of other growers having similar contracts with Hesperian; that it shall be settled at the average pool price; that an accounting for the pool will be an accounting for each grower's fruit in said pool.

"Hesperian Orchards, Inc., will operate one Golden Delicious Pool which will include two plants, D. A. Thorndike & Sons at Oroville, and the Tu Rivers Packing Company at Olds Station, Washington."

The court found that '* * * The packing of Plaintiffs' fruit was actually done under the exclusive charge and supervision of the Defendant and its agents, * * *.' The appellant claimed that the contract was modified by the respondents' employee, Lynn Goodman, who died before all but a small quantity of the season's crop was shipped. The court found that Goodman had no authority to bind the respondents to a modification of the contract and that he had not been held out to have such authority.

In a carefully prepared memorandum opinion, the trial court said:

'* * * the Courts is not at all convinced that sufficient evidence was presented in this case to show that Mr. Goodman had or was held out as having authority from the plaintiffs to authorize him to agree to change such an important provision of the 'Marketing Contract' * * * namely, the inclusion of all fruit in one common pool. This is especially true, in the Court's opinion, in view of the fact that one or more of the plaintiffs was always available with whom the defendant could have discussed this very important contractual matter.'

With respect to the quality of the apples, the trial court in its memorandum opinion said:

'* * * that this matter was not the primary responsibility of the plaintiffs herein, but was on the other hand, according to the contractual agreement entered into, the responsibility of the defendant herein. The Court would refer the parties hereto to the 'Memorandum of Agreement' * * * and paragraph 2 therein under 'General', which reads 'Hesperian Orchards Inc. will have the exclusive charge and supervision of packing, marketing and shipping Golden Delicious Apples from the pool.' (Italics mine.) In this connection the Court also has in mind the testimony of the defendant's supervisor, Margaret Nelson, who testified on cross examination that she was never informed of the above 'exclusive' contractual provision.'

Four of the six assignments of error are to the findings of fact, and the other two assignments of error are to the failure to make requested findings of fact.

The evidence was sharply in conflict. Actually, all of the claimed errors proceed upon the hypothesis that this court will try de novo disputes of fact tried to the court below if all of the evidence is certified here. Assuming the constitutionality of the Laws of 1893, chapter 61, § 21, p. 130, a question which we need not decide, this hypothesis would have been true from 1893 until 1951, but was not true prior to 1893 nor has it been true since 1951.

RCW 4.44.060 controls. It provides in part as follows '* * * The finding of the court upon the facts shall be deemed a verdict, and may be set aside in the same manner and for the same reason as far as applicable, and a new trial granted.'

This is a territorial statute first appearing in the Laws of 1869, chapter 17, § 251, p. 60.

In construing this statute, the court said in Reynolds v. Dexter, Horton & Co., 2 Wash. 185, 26 P.221, 222:

'* * * Unless the finding was so clearly unfounded as that it should have been set aside had it been made by a jury, we should not disturb it. It stands as a special verdict, and must be so treated. * * *'

In Graves v. H. L. Griffith Realty & Banking Co., 3 Wash. 742, 29 P. 344, 345, the court explained the effect of the section in these words:

'The main contention here is that the evidence does not support the findings. An appellate court, in a law case, will not usurp the functions of a jury, or of a judge acting in the capacity of a jury, and reverse the judgment because the weight of testimony seems to be on the other side, or because, in a case of conflict of testimony, the jury believed the testimony of witnesses that it does not believe. This doctrine is so elementary and so universally pronounced by the courts that it would be idle to enlarge on it or to discuss it further. It is sufficient to say that the jury is the judge of the facts. If the testimony on which the judgment is based is competent, and is legally introduced, and if...