Washington Fish & Oyster Co. v. G. P. Halferty & Co.

Decision Date29 April 1954
Docket NumberNo. 32561,32561
Citation269 P.2d 806,44 Wn.2d 646
CourtWashington Supreme Court
PartiesWASHINGTON FISH & OYSTER CO., Inc. et al. v. G. P. HALFERTY & CO., Inc.,

Jones, Birdseye & Grey, Seattle, for appellant.

Evans, McLaren, Lane, Powell & Beeks, Seattle, for respondent.

FINLEY, Justice.

Washington Fish & Oyster Co., Inc., brought this action to recover an amount of money alleged to be due under two contracts with G. P. Halferty & Co., Inc. So far as the merits of the controversy are concerned, the principal issue presented, both in the trial court and on appeal, is whether the contracts sued upon were contracts for an outright sale of canned salmon to Halferty Co., or contracts which created an agency relationship between the parties, whereby G. P. Halferty & Co., Inc., was a selling agent or a broker for respondent.

Washington Fish & Oyster Co., Inc., is a large fish-packing concern in Seattle. The company (hereinafter referred to as Washington Fish) has a selling organization, which disposes of a large percentage of its products. G. P. Halferty & Co., Inc. (hereinafter referred to as Halferty) operates as a fish brokerage company and, in addition, has its own extensive business of packing canned salmon and other seafoods, and, in the terms of the trade, takes a position in the canned-salmon market, often buying from others outright on its own account without necessarily having orders on hand.

In the latter part of February, 1951, Claude H. Angstead, then employed in the sales department of Halferty, telephoned Washington Fish. Speaking with Norman Weitkamp (vice-president of Washington Fish), he requested that company to supply Halferty with one thousand cases of 'Chum' salmon, at twenty dollars a case, this being the general market price at the time. Mr. Angstead further requested that the Halferty labels be placed on the cans, and that the salmon be shipped pursuant to future shipping instructions from Halferty.

On February 27, 1951, Halferty confirmed this order on a written mimeographed form, signed by Mr. Angstead for G. P. Halferty & Co., Inc.

Early in March of 1951, another transaction took place and was identical to the transaction of February, 1951, except that seven thousand cases of salmon were requested by Halferty. Again, Halferty confirmed the arrangement by a written mimeographed form. These forms will be referred to herein as contracts, although counsel for Halferty argues that they are not. Subsequently, one thousand cases of the second order were canceled by mutual agreement of both companies. At the time the two orders were placed early in 1951, the market for canned 'Chum' salmon was active and firm at the market price of twenty dollars a case. Halferty had orders for about one half of the total number of cases ordered from Washington Fish, and anticipated orders for the remainder. There was at the time an O.P.S. ceiling price of $20 per case. As previously stated, the two form contracts, signed and mailed by Halferty to confirm the purchases, are identical except for the quantities involved. The mimeographed form is set out herein at a later point.

In accordance with the agreement, Halferty sent to Washington Fish, at various dates, written labeling and shipping instructions, indicating the quantity of salmon to be shipped, the dates for delivery, and shipping destinations. Before the end of April, 1951, all of the salmon had been shipped pursuant to Halferty's instructions From time to time, Halferty sent checks to Washington Fish as payments on the account. Only two relatively small deliveries of salmon were paid for by banker's collection order as provided in the contracts.

In the latter part of September, 1951, Washington Fish requested payment of the balance then due on the Halferty account. Officers from the two companies conferred on September 25, at which time Halferty delivered a statement entitled, 'Accounting of Salmon Stock Consigned.' This statement itemized the cases of salmon sold by Halferty and the prices received. Some had been sold for $20 a case; some for $18 and $16 a case. According to the statement, 2,186 of the total number of cases shipped by Washington Fish still remained unsold by Halferty. At the September 25 meeting, William Jensen, president of Washington Fish, disclosed that his company did not own the canned salmon involved in the transaction. (Subsequently, in a deposition taken by the attorney for Halferty, William Jensen revealed that Washington Fish was an agent for British Columbia Packers, Ltd., of Vancouver, B. C., and that the latter company owned the salmon and had authorized Washington Fish to pack and to sell it.) Mr. Jensen requested that payment of the account be made at once. The Halferty representatives took the position that, under the contract, Halferty was a sales agent and was obligated to pay for the salmon only as it was sold by Halferty. Mr. Jensen suggested that Halferty offer to make immediate settlement on the basis of $20 per case for all the cases actually sold at that price; and $18 a case for the remainder. Mr. Jensen stated that, if such an offer was made by Halferty, he would communicate it to Washington Fish's principal, the British Columbia Packers, Ltd. Halferty declined to make such an offer. On October 5, 1951, Halferty sent a check for $65,847.60 to Washington Fish. Enclosed with the check was a statement showing Halferty's itemization of the account and the amount Halferty claimed was owed to Washington Fish.

Washington Fish consulted its attorneys, and on October 8, 1951, had the check certified. On October 11, the attorneys for Washington Fish wrote to Halferty, advising that the check was not accepted in full payment but would be held until the matter was finally determined. They further asserted that Washington Fish claimed $17,257.01 as the amount still due on the account.

On October 15, 1951, Halferty replied in writing, reasserting that it had acted only in the capacity of a selling agent. Shortly thereafter, this action was brought by Washington Fish. From a judgment rendered in favor of Washington Fish, Halferty has appealed.

Appellant first assigns error to the trial court's sustaining of demurrers to two affirmative defenses contained in its original answer. The appellant, having elected to plead over rather than stand on its original answer, waived any objection to the ruling of the court in sustaining the demurrers. Application of the procedural principle here involved usually occurs in connection with a demurrer to a complaint. Goshert v. Wirth, 130 Wash. 14, 226 P. 124; Noble v. Martin, 191 Wash. 39, 70 P.2d 1064; Port of Seattle v. Fidelity & Deposit Co., 185 Wash. 247, 53 P.2d 740. However, the procedural principle is applicable where the pleading to which the demurrer is sustained is an affirmative defense. Sunset Motor Co. v. Woodruff, 130 Wash. 516, 228 P. 519.

Appellant's second assignment of error attacks the trial court's sustaining of a demurrer to its third affirmative defense, contained in its amended answer, which attempted to set out an accord and satisfaction. Assuming this was error, we agree with respondent that there was no prejudice, inasmuch as the trial court admitted all of appellant's evidence on this issue and, in effect, disregarded the fact that the demurrer had been sustained. The issue of accord and satisfaction will be discussed subsequently.

After the trial had commenced, appellant moved that the case be dismissed on the ground that the plaintiff therein was not the real party in interest; and that Washington Fish had no pecuniary interest in the outcome of the case, but was merely an agent of British Columbia Packers, Ltd., owner of the salmon. The motion was denied, but the trial court on its own motion made the British Columbia Packers, Ltd., an additional party-plaintiff. This action was consented to by British Columbia Packers, Ltd. Appellant has assigned error to the court's refusal to dismiss the action. At the trial, the appellant argued, in support of its motion, that, by joining British Columbia Packers after the trial had commenced, the court had deprived it of the valuable right of removal to a federal court. This argument was again made in appellant's opening brief. Respondent has correctly pointed out that, under 28 U.S.C.A. § 1441(b), such a right to removal does not exist unless 'none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.' See, also, 1 Barron and Holtzoff, Federal Practice and Procedure 179, § 103.

In its reply brief, appellant concedes that it has no right to removal to a federal court, but, for the first time, offers additional arguments why the joinder of the new party-plaintiff was prejudicial. We find no merit in the arguments and, since these contentions have been made for the first time in the reply brief, we will not consider them. Turner v. Department of Labor and Industries, 41 Wash.2d 739, 251 P.2d 883; Schrock v. Gillingham, 36 Wash.2d 419, 219 P.2d 92.

The action of the trial court in joining the additional plaintiff was proper and was clearly authorized by Rule of Pleading, Practice and Procedure 2(3), 34A Wash.2d 69, which provides:

'(3) No action or proceeding shall be defeated by the nonjoinder or misjoinder of parties. New parties may be added or substituted and parties misjoined may be dropped by order of the court at any stage of the cause, as the ends of justice may require.'

See, also, Toulouse v. New York Life Insurance Co., 39 Wash.2d 439, 235 P.2d 1003.

Most of appellant's remaining assignments attack the trial court's findings of fact. As a preliminary to our own consideration of these assignments, it is necessary to discuss respondent's contention that such assignments are insufficient to permit a review under Rule on Appeal 43, 34A Wash.2d 47, as amended November...

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  • Hansen v. Wightman
    • United States
    • Court of Appeals of Washington
    • August 4, 1975
    ...face, and is clear and unambiguous. Parol evidence could not have been admitted to vary its terms, Washington Fish & Oyster Co. v. G. P. Halferty & Co., 44 Wash.2d 646, 269 P.2d 806 (1954); Schinnell v. Doyle, 6 Wash.App. 830, 496 P.2d 566 The retainer agreement which was offered by the pla......
  • Western Machinery Co. v. Northwestern Improve. Co.
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    • February 5, 1958
    ...192, 204, 142 P. 687, 691, L.R.A.1915A, 853. Smith v. Johnson, 2 Wash.2d 351, 359, 98 P.2d 312; Washington Fish & Oyster Co. v. G. P. Halferty & Co., 44 Wash.2d 646, 658-659, 269 P.2d 806; Karatofski v. Hampton, 135 Wash. 139, 141-142, 237 P. 17. It is held in Washington that this is a doct......
  • Thornton v. Interstate Securities Co.
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    ...agreement. If it was, the court would refuse Mr. Thornton's theory of partial integration. See Washington Fish & Oyster Co. v. G.P. Halferty & Co., 44 Wash.2d 646, 269 P.2d 806 (1954) (wherein the court stated parol evidence is admissible to ascertain the intent of the parties only when the......
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    • December 23, 1965
    ...will the courts permit oral evidence to establish or create an ambiguity in a written contract. Washington Fish & Oyster Co. v. G. P. Halferty & Co., 1954, 44 Wash.2d 646, 658, 269 P.2d 806, and case cited. Buyken v. Ertner, 33 Wash.2d 334, 205 P.2d 628 (1949). Conversely, this court has no......
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