64 Wash. 375 | Wash. | 1911
The appellant, a Massachusetts corporation, in the year 1907, was. the owner of the steamship “Hyades,” but had chartered it to Schubach & Hamilton, a Washington corporation, who operated it on the Alaska run out of the port of Seattle. The respondent company was, in the year 1907, operating at the port of Nome, Alaska, as lighterers. In the year 1906, Schubach & Hamilton made a contract with the respondent, the Sesnon Company, whereby it was agreed that the company should collect all freight charges on freight to be carried by the vessel operated by Schubach & Hamilton to Nome, Alaska, and upon the collection of the same should pay over such freight charges to Schubach & Hamilton forthwith. In the month of September, 1907, Schubach & Hamilton, finding that it was unable to comply with the conditions of the charter, executed and delivered to the Boston Tow Boat Company, appellant, an agreement whereby Schubach & Hamilton abandoned the Hyades over to the owner, the Boston Tow Boat Company, Schubach & Hamilton agreeing in said agreement to collect and receive in trust the proceeds of the voyage of the Hyades, then about to be begun.
After the making of that agreement, the Hyades sailed from Seattle to Nome and, upon her arrival at Nome, was lightered by the Sesnon Company, it collecting the amount of freight charges upon the delivery of freight to the various consignees, and turning over to Schubach & Hamilton all freight money collected, less the sum of $4,269.69- This particular voyage took place between the dates of October 3, 1907, and November 4, 1907, which was after the abandonment of the Hyades by Schubach & Hamilton. The action was brought by the appellant against the Sesnon Company for the amount that had not been turned over by the respondent to Schubach & Hamilton. At the trial in the court be
The court made a finding of fact that, at all times between the 6th day of June, 1908, and the 31st day of October, 1910, both inclusive, the plaintiff was continuously transacting business within the state of Washington, a substantial part of its ordinary business being of a character giving rise to forms of legal obligation; that between said dates it maintained in Seattle, Washington, a representative, in the person of a marine superintendent, whose duties were those of attending to matters relating to the up-keep at Seattle, Washington, of the ocean-going steamships, Hyades, Pleiades, and Lyra, at all of said times owned by the plaintiff, maintaining proper crews and equipments, etc. Upon this finding of fact, it was determined by the court that the plaintiff had not complied with the statute in relation to the payment of its fees, and the cause was dismissed. But in order to settle the whole controversy and prevent another action at some future time, the court also found, in substance, that the defendant had no notice of the abandonment of the Hyades by Schubach & Hamilton, no notice of the contract between Schubach & Hamilton and plaintiff, and no notice that Schu
Noticing first the respondent’s contention that the appellant had no right to bring an action for the reasons affirmatively alleged in the answer, § 7 of chapter 140 of the Laws of 1907, p. 271 (Rem. & Bal. Code, § 3715), is as follows:
“No corporation shall be permitted to commence, or maintain any suit, action or proceeding in any court of this state, without alleging and proving that it has paid-its annual license fee last due.”
A somewhat lengthy argument has been presented by the appellant, to the effect that this section, construed in con
“The defendant in a civil action upon a contract expressed or implied, may set off any demand of a like nature against the plaintiff in interest, which existed and belonged to him at the time of the commencement of the suit. And in all such actions, other than upon a negotiable promissory note or bill of exchange, negotiated in good faith and without notice before due, which has been assigned to the plaintiff, he may also set off a demand of a like nature existing against the person to whom he was originally liable, or any assignee prior to the plaintiff, of such contract, provided such demand existed at the time of the assignment thereof, and belonging to the defendant in good faith, before notice of such assignment, and was such a demand as might have been set off against such person to whom he was originally liable, or such assignee while the contract belonged to him.”
It is the contention of the appellant that separate counterclaims and set-offs there pleaded do not show any liability on the part of Schubach & Hamilton on account of the matters set forth, as the various claims are unliquidated; and that, even conceding the liability on the part of Schubach & Hamilton, the pleadings do not show any privity between respondent and appellant, nor any transaction between appellant and Schubach & Hamilton, whereby the liability of Schubach & Hamilton is assumed by appellant or can be trans
“Our agent will furnish you a manifest of the cargo which you are to lighter ashore, showing charges thereon and proportion of same accruing to this company. Adjustments to be made between you and our agent at Nome, and he paying you your proportion of all prepaid freight.”
Again, paragraph 4:
“Our agent will furnish you with list of passengers and make payments direct to you in accordance with same at agreed rates hereinafter provided.”
Paragraph 9:
“When desired by us you are to issue bills of lading on our forms to be furnished by our agent on freight originating at Nome, and adjust settlement of charges on prepaid freight with our Nome agent.”
The agreement simply shows' that this respondent was under contract with Schubach & Hamilton to perform certain services for it, and these counterclaims were legal counterclaims, being mostly for failure of Schubach & Hamilton to deliver coal, grain, and other commodities to the respondent, which respondent had shipped in the care of Schubach & Hamilton.
Nor is there anything in the contention that this counter-, claim was not properly pleaded. The facts were clearly and concisely set forth in the answer showing the liability of Schubach & Hamilton, and this was a sufficient pleading of the counterclaim under the provisions of the code.
Finding no error in the record, the judgment is affirmed.
Parker, Gose, Mount, and Fullerton, JJ., concur.