118 Wash. 556 | Wash. | 1922
— This action has its foundation in a written contract, entered into on April 27,1920, by the appellants on the one side and the respondents on the other. The contract is long and somewhat minute in its details, and its substance only needs be set forth. In the contract it is recited that the respondents are the owners of a certain boat known and registered as the “Decision”, which boat is suitable for use in salmon fishing, and that the appellants are desirous of securing the use of the boat for salmon fishing during the fishing season of 1920. It is then agreed that the respondents will lease the boat to the appellants for the fishing season named, and will send along with the boat one of their number to act as engineer of the boat and to perform other services thereon when needed and when the work can be performed without interfering with his duties as engineer; that the appellants will hire the boat and will use it in salmon fishing during the full fishing season of 1920, “or as long as the fishing is good enough to warrant continuance of the same, of which fact they shall be the sole judges”; that the appellants shall purchase a purse seine net of suitable size and quality for salmon fishing to be used on the boat, and make such initial payment on the same as may be necessary to procure it; that they will take proper care of the boat and its equipment while in their possession and return the same with its equipment to the respondents at the close of the fishing
“Two-sevenths of the remaining sum less the sum paid by the parties of the second part as the initial payment on the said purse seine net shall be paid to the parties of the first part, the remaining sum shall be paid to the parties of the second part, and it is further agreed that if there is not sufficient money received by the sale of the fish caught by the said ‘Decision’, of Tacoma, during the present fishing season to pay all of the expenses for supplies, fuel and incidental expenses and for the said purse seine net, in full, and for any other sum that may be owing to the parties of the second part by the parties of the first part, including the total purchase price of the said purse seine net, which will in that event be paid by parties of the second part, then and in that event the parties of the second part agree to accept, and the*559 parties of the first part hereby agree to make, execute and deliver to the parties of the second part a mortgage on the said boat ‘Decision’, of Tacoma, as security for the payment of the said sums enumerated in this paragraph, which mortgage shall be payable one year from the date of execution thereof with interest at the rate of 3% per annum and in the usual standard form. In event of loss on incidental expenses, parties of the first part will be held for 2/7 of such loss.”
The action was instituted by the appellants. In their complaint, after setting forth the contract, they allege that, acting pursuant thereto, they purchased a purse seine net at a cost to themselves of $2,200, and had made certain advancements in the execution of the contract, which sums had not been repaid to them, and that the respondents had refused to execute a mortgage on the vessel named in the contract to secure the same. The relief sought was a “decree ordering the defendants to comply with the terms of the contract, and to make, execute and deliver to the plaintiffs a mortgage on said boat ‘Decision’ to secure the sums.”
The answer of the respondents, after making certain denials, affirmatively set up that they had executed and delivered to the appellants their notes for the alleged purchase price of the net, that they had executed a mortgage on the boat for certain moneys loaned them by the appellants; that the appellants had been guilty of fraud in purchasing the net, had carelessly, negligently and fraudulently suffered the same to be lost, because of which it could not be returned to the respondents; and that they had breached the contract in other respects, to the damage of the respondents greatly in excess of the amount of the loan. The relief sought by them was a cancellation of the notes and mortgage and for a judgment over against the appellants.
As conclusions of law, the court found that the appellants were responsible for purchase of the net, that it was worthless, and that there was no consideration for the notes given them for its purchase price; that the respondents were damaged by the appellants’ breach of the contract to engage in fishing in the sum of $50 per day during the fishing season, and that, after deducting this sum from the amount due on the notes, plus the sum the appellants paid for the fuel, equipment and supplies, there remained a balance due the respondents in the sum of $457.50.
Judgment was entered in favor of the respondents for the last mentioned sum, and this appeal followed.
The appellants’ argument on the appeal is mainly directed to the sufficiency of the evidence to justify the findings of the court: With respect to the net, the evidence, in our opinion, decidedly preponderates in favor of the findings. By the terms of the contract, the duty rested upon the appellants “to purchase a purse seine net suitable in size and quality for salmon fishing to be used on the boat ‘Decision’,” and they not only purchased a net, but represented by both words and conduct that it was such a net as they were required to purchase by the terms of the contract. These were representations on which the respondents had a right to rely, and the evidence is that they did rely thereon. It is true that one of the respondents twice saw the net prior to the execution and delivery
But while the trial court rested its finding that the consideration for the notes had failed for the foregoing reasons, the evidence justified a similar conclusion on a different ground. The contract provided that the appellants should care for the net while it was in their possession and return it to the respondents at the close of the fishing season in as good condition as it then was, reasonable use excepted. Under the contract, the appellants were bailees of the net and could not excuse themselves from a failure to return other than by a showing that it was lost without their fault. Here the evidence shows to the contrary. The appellants were negligent in the manner of-loading the net on the boat. The net was covered with a coating of tar before loading and formed a mass weighing many hundred pounds. It was placed on an exposed part of the boat. It was not tied on in any manner, the ordinary and usual way of fastening such things, but was held in place by an ordinary canvas covering, in itself insecurely fastened to the boat. Even the corks, which would have caused the net to fioat and thus enabled it to be recovered in case it fell into the water, were taken off of it. Plainly its loss under such circumstances cannot be said to be a loss without fault.
The sufficiency of the evidence to justify the finding that the appellants breached the contract in failing to
But we think that the court allowed too large an amount as the respondents’ measure of damages for the breach of the contract. The evidence justifies the finding that the use of the boat was of the value of fifty dollars a day during the fishing season, but we are unable to conclude that the finding as to the number of days the fishing would have been found profitable was justified. The exact number of days’ fishing that would have been found profitable is difficult of determination from the evidence, but we think an overcharge has been made in this respect sufficient to offset the money judgment allowed the respondents if the appellants’ costs of this appeal, which might-otherwise follow, be disallowed.
The judgment will therefore be modified to the extent of disallowing the money judgment awarded to the respondents, and affirmed in all other respects. Neither party will recover costs on the appeal.
Parker, O. J., Mitchell, Tolman, and Bridges, JJ., concur.