Vollrath v. Crow

• Citation: 9 Wash. 374,37 P. 474
• Parties: VOLLRATH v. CROW ET AL.
• Decision Date: 10 July 1894
• Court: United States State Supreme Court of Washington

37 P. 474

9 Wash. 374

VOLLRATH v. CROW ET AL.

Supreme Court of Washington

July 10, 1894

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by Otto Vollrath against Thomas Crow and another to recover the amount paid on an accommodation note for defendants. Judgment for plaintiff, and defendants appeal. Reversed.

Bell &amp Austin and W. R. Andrews, for appellants.

Fishback Sapp & Ferry and A. W. Frater, for respondent.

SCOTT J.

The plaintiff brought this action to recover the amount of a promissory note for $400, which he alleged he had executed to defendants, without any consideration other than for their accommodation, and which they had negotiated, and he had been compelled to pay. The defendants admitted the making and negotiation of the note, but denied that it was without any other consideration than their accommodation and, by way of counterclaim, alleged that, in January previous to the execution of said note, they had sold and delivered to the plaintiff a quantity of cedar logs, and that the plaintiff had not paid any part of the purchase price, otherwise than as said note was a partial payment. The plaintiff replied, denying this affirmative matter. Verdict and judgment for plaintiff.

The controversy was as to whether the title had passed. The plaintiff testified that the logs were to be scaled and delivered at his mill, according to the terms of the contract. The defendants contended that the logs were to be accepted according to a scale made at Priest's point. The logs were taken from this place, and were lost before reaching the mill. The plaintiff was allowed to introduce proof to show a general custom, in case of a sale of logs, to scale and deliver them at the mill. This testimony was objected to by the defendants, and its admission is alleged as error. We think the point is well taken. The contract was not indefinite. There was simply a controversy as to what the contract was. Both parties admitted that there was an express agreement as to where the logs were to be scaled and delivered. In such a case, proof of a custom to scale at the one place or the other was inadmissible. "Where a contract is by word of mouth, and the controversy is not as to the meaning of the terms used by the parties, but as to what precise terms had been in fact used, evidence of custom is not admissible." Lawson, Usages & Cust. § 187. And see Sanford v. Rawlings, 43 Ill. 92.

A great many questions have been raised on this appeal; but as many of them are unimportant, and none of them are likely to arise upon a new trial, and owing to the lengthy discussion it would take to pass upon them, we shall not undertake to do so. There is one, however, which we cannot allow to pass without comment. A motion for a new...