Washington Printing Co. v. Osner

• Decision Date: 17 January 1918
• Docket Number: 14289.
• Citation: 99 Wash. 537,169 P. 988
• Parties: WASHINGTON PRINTING CO. v. OSNER.
• Court: Washington Supreme Court

169 P. 988

99 Wash. 537

WASHINGTON PRINTING CO. v. OSNER.

No. 14289.

Supreme Court of Washington

January 17, 1918

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by the Washington Printing Company against Charles Osner. From a judgment for plaintiff, defendant appeals. Affirmed.

Adolf Loewe and Preston & Thorgrimson, all of Seattle, for appellant.

S. A Keenan and H. F. Moore, both of Seattle, for respondent.

PARKER J.

The plaintiff, Washington Printing Company, a corporation, of Seattle, seeks recovery from the defendant, Chas. Osner, upon his promise to pay for printing done by it for Karl Weiss and the Seattle German Press, Incorporated, of Seattle. Trial in the superior court for King county resulted in verdict and judgment awarding recovery as prayed for by the plaintiff from which the defendant has appealed to this court.

In October, 1914, respondent printing company entered into a written contract with Karl Weiss, by which it agreed to do the printing for the publishing of a German newspaper to be published in Seattle by Weiss. Respondent was to do the printing for a period of three years and receive certain specified amounts in payment thereof, payable from time to time as the printing would be done. The contract contemplated the organization of a corporation by Weiss which would become the owner and publisher of the newspaper, and that respondent was to accept $2,000 of the capital stock of the corporation at par value, and credit the same in part payment of its printing bill. Each party was to forfeit to the other the sum of $500 as liquidated damages upon his failure to perform the contract. A corporation was accordingly formed under the name of 'Seattle German Press, Incorporated,' and it commenced the publication of a newspaper named the 'Seattle German Press,' Weiss being its manager and editor. Respondent did the printing for this paper as agreed, and on or about April 1, 1915, there had become due for such printing over $2,000 no part of which had been paid either in stock or money. About that time appellant, Osner, and some friends interested themselves, looking to the elimination of competition between this and another German newspaper published in Seattle, and contemplated the bringing about of a consolidation of the two papers and the organization of a new corporation to own them. Adamson and Lambert, managers of respondent, insisting upon a settlement of its printing bill by Weiss, were advised by him to take the matter up with appellant, Osner, who, it was known, had in view the consolidation of the papers and the organization of a new corporation to that end. Appellant was accordingly advised by Adamson and Lambert that there was considerably over $2,000 due their company for printing done for the Seattle German Press at that time, and that they were sent to him by Weiss to advise with him concerning the matter, in view of the fact that he was promoting and interested in the bringing about of a consolidation of the two papers. He told them that the papers were being consolidated, and 'not to worry about the account.' He was told that 'they were worrying about the account, and had to get money or we would stop the publication of the paper,' to which respondent replied, 'Don't stop the publication; I will pay the bill.' This quoted language is from the testimony of one of them which is corroborated by the other. We think it appears from the evidence that the stopping of the publication of the paper would seriously interfere with the bringing about of the consolidation of the two papers as contemplated by appellant, in which he was financially interested, and which consolidation would redound to his profit. He was manifestly seeking the consolidation and the continuation of the Seattle German Press as one of the means to that end, in order that he would profit thereby as one to become financially interested in the new concern. Thereafter appellant made some payments to respondent upon the printing bill as promised by him, and the printing of the Seattle German Press was continued from day to day by respondent until the 18th day of April, 1915, when the consolidation of the papers took place. It is for the balance due for printing the Seattle German Press, both before and after this promise of appellant, that this action is brought against him upon his promise. No stock was ever transferred by Weiss or the Seattle German Press, Incorporated, to respondent as part payment of its printing bill, as contemplated by the terms of the original agreement. But before the consolidation of the two papers, as we think the evidence conclusively shows, that part of the contract by which the respondent was to take 2,000 shares of the stock of the Seattle German Press, Incorporated, as part payment for their printing, and that part of the contract providing for a penalty of $500 for failure on the part of either party to carry out the contract was by mutual consent of the parties to the contract abrogated. It will be noticed in this connection that but a few months of the three-year contract period had expired when this abrogation occurred. We think the evidence warrants the conclusion that respondent refrained, not only from stopping its printing of the paper, but also from taking legal proceedings looking to collection of its claim because of the promise of appellant.

It is first contended by counsel for appellant that respondent should not be permitted to maintain this action because it did not prove upon the trial that it had paid its annual license fee last due. Counsel invoke the provisions of section 3715, Rem. Code, in this behalf. The record before us fails to disclose any specific raising of this point in ...