96 Wash. 50 | Wash. | 1917
— The plaintiffs, Thomas Carstens and Herman Meyer, copartners doing business under the firm name of Pacific Oil Mills, and successors in interest, by assignment, of Pacific Oil Mills, a corporation, commenced this action in the superior court for King county seeking recovery of $4,015, claimed as the purchase price of peanuts sold by that corporation to the defendant, The Nut House, a corporation, during the months of November and December, 1913, and the month of January, 1914. It is conceded by defendant that peanuts of that total value were so sold to it and that the claim therefor was assigned to the plaintiffs by the Pacific Oil Mills, a corporation, before the commencement of this action. The defendant alleges that, before such assignment was made, it earned the sum of $7,940 as commissions in selling peanuts for Pacific Oil Mills in Chicago and New York in pursuance of a commission contract entered into between it and that corporation, which earned commissions the defendant alleges are unpaid, and seeks to offset the same against the claim of the plaintiffs here sued upon. So the real controversy was, and here is, over the commission claim of the defendant. The trial in the superior court sitting with a jury resulted in a verdict in favor of the defendant to the effect that it is entitled to have its commission claim offset against the claim of the plaintiffs, and that such commission claim exceeds the claim of the plaintiffs. Judgment was accordingly entered that plaintiffs recover nothing, and that the defendant recover from the plaintiffs its costs and disbursements incurred in this action. From this judgment, the plaintiffs have appealed to this court.
Pacific Oil Mills was a corporation engaged in the importation and wholesale of nuts in the city of Seattle at all times here in question prior to the assignment of its claim against
The principal contentions here made by appellants have to do with the sufficiency of the evidence to sustain the verdict and judgment, which questions were presented to the trial court by motions timely made therein. It is insisted in that behalf that there was not sufficient proof of the making of the commission contract between respondent and Pacific Oil Mills. The fact of the making and also the terms of that contract seem to us to be rendered quite certain by the testimony of the respondent’s president, if he is to be believed, the furnishing of samples by Pacific Oil Mills to respondent, and certain correspondence introduced in evidence. The contract so appearing contemplated the sale of peanuts by respondent for the Pacific Oil Mills in eastern cities, and that respondent should have, as its compensation for making such sales, an amount equal to the excess over six cents per pound. It seems quite clear to us that the evidence fully warrants the conclusion, as evidently reached by the jury, that this contract was actually entered into and that its terms were as we have indicated. We are of the opinion that there was no failure of proof so far as this branch of the case is concerned.
It is contended that there was a failure of proof of the making of sales under the commission contract by respondent. This contention seems to be rested largely upon the fact that the sales were made by respondent’s representatives in its own name instead of the name of Pacific Oil Mills. The making of sales in this manner without disclosing the name of Pacific Oil Mills as principal was assented to by it upon being fully advised of the sales being so made. It actually made ship
It is contended that the proof fails to show that the purchasers to whom respondent claims to have made the sales were
It is further contended in appellants’ behalf that the sales contracts procured for it by respondent are too indefinite as to quantity to support recovery of commissions by respondent, in any event except in so far as two of such sales
It is contended by counsel for appellant that the trial court erred in admitting in evidence testimony to show the making of the sales in question because, prior to the trial of the case, they had demanded of counsel for respondent a bill of particulars, in response to which respondent furnished a bill of particulars, but somewhat defective, we may admit for argument’s sake. Counsel invoke the provisions of Rem. Code, § 284. While that section seems to contemplate the exclusion of evidence of items of account when not stated in the complaint or in a bill of particulars when demanded, it also provides that, in case the account is defective, the court “may order a further account.” Counsel for appellant did not ask
Finally, it is contended in appellants’ behalf that the trial court erred in giving certain instructions and in refusing to give certain others requested by them. What we have already said disposes of some of the questions so raised. Otherwise, we think the rulings of the court upon the instructions were wholly without prejudice to the rights of appellants and do not call for further discussion here.
We are quite clear that appellant has had a fair trial free from prejudicial error. The judgment is affirmed.
Ellis, C. J., Mount, and Holcomb, JJ., concur.