98 Wash. 301 | Wash. | 1917
Action for $1,046.50, with interest, claimed' tó be due under an oral contract pursuant to which plaintiff purchased for defendants certain horses for resale to the French Republic. Defendants counterclaimed, demanding a judgment against plaintiff for $1,303.65, with interest.
The main controversy, as we view it, relates to the terms of the contract. It is not controverted that the horses were
Since shortly after the outbreak of the present war in Europe, defendants have been furnishing, under contract, horses to the French' government. Their mode of operation was to select some center, as in this instance Spokane, as a purchasing point. They would then deposit in some bank money estimated to be sufficient to meet purchases in the surrounding territory. Local horse buyers would then be employed to canvass the region and purchase horses, paying therefor by checking on defendants’ bank account.
In the early part of 1915, defendant Darnell, representing his firm, came to Spokane, made the necessary banking arrangements with the Spokane & Eastern Trust Company, and through one Smith, assistant cashier of that bank, got in touch with certain local horsemen, among them the plaintiff. Plaintiff had been dealing in horses for years, and just prior to this time had been buying for one Franchen, who was collecting horses in the vicinity of Spokane for defendants. Plaintiff, desiring to deal with defendants direct, sought the introduction to Darnell through Smith. Smith and several horse buyers besides plaintiff were present when the oral contract between plaintiff and Darnell was made. ' Darnell told plaintiff what the specifications were for three classes of horses, known as Class “AA,” Class “A,” and Class “C.” Plaintiff claims that, at the time, he made a notation of these for his own convenience, but the memorandum was not produced at the trial. Since there is no material controversy as to what these specifications were we shall not set them out. Darnell testified, and the fact is not disputed, that they were the specifications furnished him by the French government. The horses of whatever class were to be sound and without blemish. It was agreed that plaintiff was to
Plaintiff bought forty horses, issuing in payment checks aggregating $4,133.50 against defendants’ bank account. The last bunch- of these horses was shipped to Spokane about November 26 or 27, 1915, where they remained in plaintiff’s custody. He paid the expenses of their care by drawing on defendants’ bank account. About December 20th, and again about a week later, representatives of the French government made two inspections of the horses and accepted in all twenty horses as being within the specifications. These were classed and priced as follows:
3 Class AA at $155 each............ $465
11 Class A at $135 each.............. 1,485
6 Class C at $110 each.............. 660
Total........................$2,610
The remaining twenty horses were rejected. Plaintiff claimed that the horses were up to the specifications and should have been accepted Defendants claimed that the French inspection settled that matter. Meanwhile the horses were being kept at Spokane at plaintiff’s charge for feed and care. Finally, a stipulation was executed on January 14, 1916, under which defendants deposited $1,250 with the Spokane
At the trial it was admitted that one horse, for lack of height, did not come within the specifications. Both parties, between the time of the last French inspection and the sale of the rejected horses, had the rejected horses examined by experienced horsemen who testified at the trial. Much evidence was introduced as to whether, in- the opinion of these witnesses, the rejected horses.met the specifications, but, as we view the case, it is not necessary to examine this evidence in detail.
The court found that thirty-nine o'f the horses were within the specifications and should have-been so classified- and priced as to give a total value of $4,965. He further found that the remaining horse was of the value of $130, mailing the value of all of the horses $5,095.. Deducting the $4,133.50 paid for the horses, the court concluded that plaintiff was entitled to judgment for $961.50. Judgment went accordingly. Defendants appealed.
As before stated, appellants’ main contention is that it was understood from the beginning that the decision of the French inspectors should be final as to whether the horses came up to the specifications. We regard this as the crucial question in the case, and we shall, therefore, discuss the evidence touching it in some detail.
Respondent testified that he was to take care of the horses that did not come up to specification, that he was to take them, pay for them and keep them, repaying the money he had paid for them, together with freight and feed up to. the
“The conversation was nothing more than that these horses were to be bought and brought here and inspected by the inspectors of the French Republic. ... It was mutually understood, as far as I knew.”
and again:
“Q. Who was to determine whether a horse was class C,’ or ‘A’ or double ‘A,’ or any other class? A. The French inspector, of course.”
and again on cross-examination:
“Q. As I remember your testimony, you don’t remember that there was anything mentioned at the time you were talking with Mr. Dickson, that the horses must be inspected by the French inspectors? A. That was the understanding, that they were to be inspected by the French inspectors. Q. How did it become the understanding? A. Because Mr. Dickson knew we were handling horses to be placed before the French inspectors.”
Finally, the court, seeming still in doubt as to what he had said, remarked:
“The Court: I understood that he did not remember anything specifically being said as to who was to pass on the class £A’ or double £A’ or £C’ grade of horses. Mr. Post: That is not the way I understood him. He said that only as to the rejects, what was to be done with them. The Court: What did you say on that subject, Mr. Darnell? A. I said that as far as the inspection was concerned, that the horses were all to be passed on by the inspectors of the French Republic. Mr. Post: Did you say that to Mr. Dickson or not, did you tell him that ? A. Yes, sir, I never said anything else to any one, except that the inspection would be by the French inspectors. I never had inspected any horses for any one.*307 Q. I am not asking what you said to anybody except to Mr. Dickson. A. Yes, sir. He knew they would be inspected by the French inspectors. The Court: I understood you to say that you did not remember anything specifically that was said about the inspection of these horses and their grading into the ‘A,’ double ‘A’ and ‘C’ classes; now perhaps I misunderstood you? A. Well, that classification was in the specifications, your honor; I gave him the specifications of the different classifications, as nearly as I could give them. Mr. Post: I did not hear him say what your honor suggested. The Court: I may have misunderstood, but that is the way I got it. A. I gave Mr. Dickson all the information I could in regard to the best class of horses to buy, as nearly as I could, what would be liable to be accepted.”
The contract being oral and its terms disputed, it is elementary that the intention of the parties must be ascertained not only by their testimony, but by considering that testimony in the light of the surrounding circumstances and the purpose of the contract at the time it was made and the conduct of the parties before the dispute arose. These things must be considered as to showing the probability as to what the contract was. McCowan v. Northeastern Siberian Co., 41 Wash. 675, 84 Pac. 614. The parties were experienced horsemen, dealing at arm’s length. They undoubtedly knew that the "question whether the horses came up to the specifications would be a vital matter to both parties. That it is a debatable question is glaringly evident from the testimony of some thirteen witnesses who testified in this case.
That an inspection of the horses for the purpose of determining whether they met the specifications was intended is further shown by the fact that, after their arrival in Spokane, respondent waited nearly a month for the arrival of the French inspectors. During this delay he did not inform appellants that he was not concerned with the inspectors and would not be bound by their decision, as he now claims. Neither did he demand that appellants accept the horses as meeting the specifications, nor that appellants inspect the .horses themselves. He was present at the French inspection
It is a well established rule that, where parties to a contract of sale agree that the quality of the thing sold shall be determined by an inspection to be made by a particular person, or a person holding a particular position, such determination is conclusive upon the parties and cannot be impeached except for fraud, collusion or palpably arbitrary action: Canton Lumber Co. v. Liller, 107 Md. 146, 68 Atl. 500; Nofsinger v. Ring, 71 Mo. 149, 36 Am. Rep. 456; Del Bondio v. Dold Packing Co., 79 Mo. App. 465; Chapman v. Kansas City, C. & S. R. Co., 114 Mo. 542, 21 S. W. 858; Savercool v. Farwell, 17 Mich. *308; Texas Star Flour Mills Co. v. Moore, 177 Fed. 744; Citizens’ Independent Mill & Elevator Co. v. Perkins (Okl.), 152 Pac. 443; Lucas Coal Co. v. Delaware & H. Canal Co., 148 Pa. St. 227, 23 Atl. 990; Empson Packing Co. v. Clawson, 43 Colo. 188, 95 Pac. 546; Brooke v. Laurens Milling Co., 78 S. C. 200, 58 S. E. 806, 125 Am. St. 780; Gratiot St. Warehouse Co. v. Wilkinson, 94 Mo. App. 528, 68 S. W. 581; 35 Cyc. 227, 228.
Respondent does not attack, either by pleading or evidence, the fairness of the inspection made by the French inspectors. Apparently he has elected to stand or fall by his
Appellants, in their answer, alleged that they have paid $770.15 for freight, feed and care of the horses. This allegation was clearly made with reference to both accepted and rejected horses. The only testimony as to such expense was that of respondent. He stated that he had drawn on appellants’ bank account in the sum of $618.05 to pay for the feeding and care of the horses after their arrival in Spokane. There was no evidence whatever as to what was expended for freight. There is no evidence or admission in the pleadings from which we can determine with absolute accuracy the cost of caring for the twenty rejected horses, which, in the absence of testimony as to freight, is the only expenditure chargeable to respondent. We shall assume, therefore, that of this $618.05 which respondent paid out of appellants’ money, one-half should be chargeable to the care of the twenty rejected horses. As before stated, respondent paid of appellants’ money for the purchase of the forty horses $4,133.50. Add to this one-half of the expense for care and feeding, $309, makes a total of $4,442.50. Twenty horses were accepted, at an aggregate valuation of $2,610, the remaining twenty were sold at public auction for $1,190, mak
The judgment is reversed, and cause is remanded with direction to enter judgment in accordance with this opinion.
' Main, Chadwick, and Webstee, JJ., concur.