3 Wash. 530 | Wash. | 1892
The opinion of the court was delivered by
Upon the trial of this cause in the court below numerous exceptions to the overruling of objections to the testimony, and to the action of the court in refusing to give and in giving instructions to the jury, were taken by the appellants, and have been preserved in the record, and are here for review. But as the view which we take of the case does not render it necessary that they should be separately examined for the purposes of this appeal, we can see no good reason for reviewing them in detail, as under this opinion the cause will be disposed of without a new trial.
The whole scope of the evidence introduced, and the rulings of the court in passing upon objections thereto, together with the instructions given by him in submitting it to the jury, establish the fact that the court took the view that the contract sued upon might be considered as one under which plaintiff was to purchase the hay in question, and was to receive as his compensation for so doing a certain sum upon each ton so purchased, which sum was to be
The other question to which we referred above goes to the admissibility of the testimony of plaintiff under the pleadings. The complaint set out the contract as one for the division of the profits made in the transaction, without any limitation or explanation as to how the profits should be established or determined. The proofs offered thereunder tended to show that while the compensation was to be determined by the profits, yet what were termed “ profits,” as testified to by the plaintiff, were not in fact made up of the difference between the total cost to the defendants at the time the sale was made and the amount received by them, but instead thereof, of the difference between the first cost of the same, with freight and wharfage added, and the wholesale price in the city of Seattle, regardless of the question as to whether or not defendants in fact realized such wholesale price, and also regardless of the amount of expense other than freight and wharfage which might have been incurred by them in making sale of the property. We are of the opinion that this proof tended to establish a contract not set up in the complaint. Theterm “profit,” as used in a mercantile sense, has a definite and well un_ derstood meaning, and as used in the complaint in this action must be held to mean that plaintiff was entitled to one-half of the amount realized by the defendants for the hay sold, over and above the entire expense to them of the property purchased by him under said contract at the time such sales were made.
The judgment must be reversed, and the cause remanded with instructions to grant said motion and dismiss the action.
Anders, C. J., and Dunbar, Stiles and Scott, JJ., concur.