Western Bakeries v. John Davis & Co.

• Decision Date: 23 March 1920
• Docket Number: 15690.
• Citation: 188 P. 406,110 Wash. 463
• Court: Washington Supreme Court
• Parties: WESTERN BAKERIES, Inc., v. JOHN DAVIS & CO.

188 P. 406

110 Wash. 463

WESTERN BAKERIES, Inc., v. JOHN DAVIS & CO.

No. 15690.

Supreme Court of Washington

March 23, 1920

Department 2.

Appeal from Superior Court, King County; Everett Smith, Judge.

Action by the Western Bakeries, Incorporated, against John Davis &amp Company. From judgment for plaintiff, defendant appeals. Reversed, with directions to dismiss the action.

Carkeek McDonald, Harris & Coryell, of Seattle, for appellant.

Leopold M. Stern, of Seattle, for respondent.

TOLMAN J.

Respondent Western Bakeries, Incorporated, as plaintiff below, brought this action to recover from appellant damages alleged to have been suffered by reason of the failure on the part of appellant to exercise due diligence in selling for it a leasehold interest or right of tenancy in a certain storeroom in the city of Seattle. It appears that in April, 1919 respondent rented the storeroom in question from month to month, through appellant, who was the agent of the owner, installed fixtures, and opened up a retail business therein. Finding the business unprofitable, it decided in June to discontinue, and sought to sell its fixtures and tenancy. Accordingly, it took the matter up with appellant, and at the suggestion of the manager of appellant's rental department wrote a letter dated July 1, 1919, to appellant, offering to dispose of its tenancy and fixtures at a price named, and to pay appellant 10 per cent. commission for making the sale. Appellant placed the matter in the hands of a Mr. Manard, one of its employés, who was unable to find a purchaser at the price fixed, but did obtain an offer of $500 as a bonus for the location, and took a deposit of $25 from the person making the offer and issued him a receipt dated July 8, 1919, reciting that the offer should hold good for 10 days, and if not accepted the money should be refunded. This offer was reported to respondent's treasurer, who had the matter in charge, and after discussing the matter with Manard, the latter was told to let the offer wait a few days in the hope that a better offer might be secured. Thereafter according to the testimony of the respondent's treasurer, the following occurred:

'On the Saturday of the next week, the 19th of July, about, I think just before 12, I dropped in and talked with Mr. Manard, and he advised me to take the $500. He said that the time limit of the offer that he had in hand then had expired, but the man had been in a couple of days before and had told him the offer was still on; that if he would take it to-day he would take the premises and pay the $500 bonus. I did not ask him who the man was nor how much deposit he had made, but he told me that it was absolutely safe for us to move out; that if we would move out on Monday, the 21st, he would pay us $500 and one-third of the month's rent, the unexpired month, for which we had paid, and that we were perfectly safe in moving out, and in moving out he would close the matter up with us; that he didn't know whether he could do it that day or not, but he would do it Monday.'

This witness further testified to the effect that it was then agreed that appellant's commission was to be reduced from the 10 per cent. to $25, and...