84 Wash. 145 | Wash. | 1915
This action was commenced by A. C. Eighme against P. P. Holcomb and Caroline H. Holcomb, his wife, to recover $1,439, which plaintiff claimed to be due him for
“This is to certify that I hereby give to the Wenatchee Fruit Company authority to sell for me all the fruit listed below. Said option is given on the following conditions:
“First. — That my fruit shall be pooled and sold with fruit of various other growers, and I shall receive the same prices, according to grade and varieties of fruit, as other growers receive.
“Third. — That the said Fruit Company sell all fruit in any way it deems best to secure best prices obtainable, and shall not sell any fruit for less prices than the minimum prices as hereinafter stated by me under this agreement.
“Fourth. — If the price obtained for the fruit is greater than the minimum price set by me, I shall receive the price which the fruit sold for; the said fruit company shall receive for its services as a handling charge per box: Peaches and Cots, 2 cents; Pears, 5 cents; C grade apples, 5 cents; Extra Fancy and Fancy, 9 cents.
Estimated
No. Boxes. Variety Minimum
Ex. Fancy Fancy Price
S^s — k—Ph «Var-t-Wn 5TfC
“I hereby agree to sell to the Wenatchee Fruit Company the following varieties of apples, for the pool price of apples of said Fruit Company, with an advance on the following varieties: $1.10 on Jnos. and W. Saps; 90c on Staymen W. Saps; $1.10 on Ark. Blacks; $1.50 on Delicious; 75c on Lumber Twigs; 75c on C Grade; Fruit to be packed according to association rules. A. C. Eighme,
“Wenatchee Fruit Co.,
“By P. P. Holcomb.”
It is admitted that the defendant P. P. Holcomb was doing business for the benefit of the community consisting of himself and wife, under the name of Wenatchee Fruit Company. The contract, which was drawn upon a printed form or blank used by defendants, was partly printed and partly written. Some three or four words were typewritten. In order that the printed portion may be distinguished from that which was written or typewritten, we have italicized the latter. Plain
During the trial of the action, the following stipulation was, by agreement of parties, admitted in evidence:
“It is hereby stipulated and agreed by and between the plaintiff and defendant that the plaintiff delivered to the defendant 2,263 boxes of C grade apples of the varieties named in the contract in evidence in this suit, being plaintiff’s exhibit ‘1,’ and that the plaintiff delivered to the defendant 1,960 boxes of fancy and extra fancy apples of the varieties mentioned in said exhibit ‘1;’ and that if the defendant is entitled to any commission on the said apples, he is entitled to the sum of five cents per box on all C grades and nine cents per box on fancy and extra fancy, and that the total amount of said commissions would be the sum of $289.55. It is further stipulated and agreed that the plaintiff has received from the defendant the sum of $2,470.50 on said apples. It is fur*148 ther stipulated and agreed that under the pool price of said apples the plaintiff would be entitled to the sum of $2,101.09 ; that the amounts paid to the plaintiff by the defendant were in the following sums and on the following dates: October 3rd, check $375.00; October 15th, check $750.00; November 14th, $300.00; November 30th, $265.00; December 14th, $300.00; December 19th, $58.00; December 19th, on order given Lamb-Davis Lumber Co., $62.50. It is further stipulated that the last delivery of said apples, consisting of 220 boxes, was made on the 15th day of November, 1912, and that all of the apples save and except said 220 boxes had been delivered prior to that date. It is further stipulated into the record that all of the dates mentioned in that stipulation just read refer to the year 1912.”
The principal question on this appeal is the proper construction of the contract. Appellant first moved for a judgment on the pleadings, on the theory that the written contract fixed minimum prices on the fruit delivered. This motion being denied, appellant on the trial proceeded upon the theory that the contract was ambiguous in its terms, and offered two witnesses as experts to explain its meaning. Upon objection, their evidence was excluded. Appellant and one other witness testified that, before entering into the contract, respondents assured appellant that there would be no “come back” from appellant to respondents. This was denied by respondents. The evident theory upon which the trial court excluded the evidence of the experts and upon which he entered judgment was that the evidence offered and the evidence admitted was incompetent, as it tended to vary the terms of a written contract; that the contract was not ambiguous ; that it did not fix minimum prices ; that it expressly stipulated a sale' at pool prices ; and that appellant was liable for overpayments made to him in the way of advancements, and was also liable for commissions. After a careful consideration of the written contract, we conclude that the trial judge reached the correct conclusion.
As above stated, the contract was partly written and partly printed, and an examination of the original instrument, which
It is evident the words “minimum price” were permitted to remain by inadvertence; that no minimum prices are named, and that, by the written portion of the contract, appellant expressly agreed to sell his apples at pool prices. It is elementary that, if a contract is partly printed and partly written, a blank form being used, more attention will be paid to the written than to the printed portion if any conflict exists, the written portion being language expressly selected by the
Considering the entire contract, and the stipulation introduced in evidence, we conclude that the judgment must be sustained. It is so ordered.
Morris, C. J., Fullerton, Mount, and Parker, JJ., concur.