40 Wash. 194 | Wash. | 1905
On July 6, 1903, appellant and respondent entered into a written agreement by wbicb the former was to be taken by the latter to Siberia, to prospect for precious metals within the limits of a mining concession theretofore granted by the Russian government to respondent. Appellant was to be furnished with transportation, tools, and food, and to have the privilege of prospecting within said territory, and to receive one-half of all values obtained by him. He embarked July 13, 1903, from Nome for the Siberian coast, upon the respondent’s steamship “Manauense.” Defendant John Rosene was president and manager of the respondent corporation and, as such officer, signed the company’s name to the written contract with appellant. Defendant S. S. Connauton was the master in command of the ship upon the voyage. Defendant McGowan was an agent of respondent aboard the Manauense.
The ship reached East Cape, Siberia, July 21, 1903, wher® respondent requested appellant to land. He refused to do so, requesting that he be put ashore at Rudder’s Bay, a point further down the coast, where respondent had no station and where its sea-going vessels did not stop. This being refused, he requested to be carried to Vladimir, a port where the ship would touch on its return to Nome. Respondent’s officers told him that he must go ashore or pay his fare back to Nome. He refused to do- either. He was then told by the officers that he would be put ashore unless he paid his fare for the return trip or left the vessel voluntarily. He still refused, whereupon the captain and McGowan went to appellant’s berth where he was partially undressed, and ordered a number of the Chinese crew to carry him to a launch at the ship’s side. Appellant resisted forcibly, but was handcuffed, placed aboard the launch, and carried to the shore. His clothing and personal effects were given him in the launch. He claims that in the melee sixty dollars were stolen from the pockets of his pataloons by the Chinamen. It is his contention that, in addition to the
Appellant brought this action to recover damages, which he alleged in the sum of $10,150. At the close of plaintiff’s case, the action was dismissed as to defendant John Posene. At this juncture, a motion was made to transfer the case to the Federal court. .Whereupon appellant reduced his claim of damages to $1,950, and the trial proceeded before the superior court without a jury. Findings and conclusions were made and entered by the trial judge favorable to respondent. From a judgment of dismissal, this appeal is taken.
Some question is raised as to whether this is an action in tort or one ’for breach of contract. From the record it appears that appellant’s counsel, in open court, made the following statement:
“I will state to the court this action is based purely and simply on a contract and on the breach of the contract. There were certain tortious features about the breach, but the action is none the less based upon the contract.”
Appellant having tried the case upon that theory in the superior court, it must be considered here upon the same theory. Sanders v. Stimson Mill Co., 34 Wash. 357, 75 Pac. 974.
The contention that the contract was partly oral we do not think can be sustained. The negotiations with Perkins and Armstrong may have been matters of inducement; but
There having been a valid written contract, it would seem to be immaterial as to what authority Perkins and Armstrong had touching the matter of employing prospectors — ■ it not being claimed that they, or either of them, made any representations or arrangements other than orally. The written contract being signed on behalf of the company by Rosene, this fact was evidence to appellant as to whom he should deal with concerning matters appertaining to his contract of employment. It would seem from the evidence that Armstrong, upon whose statements appellant seemsi principally to rely as a part of his contract, was merely a man employed to solicit prospectors to engage in respondent’s service. As such he would not have power to make or modify contracts for respondent. Rich v. Chicago etc. R. Co., 34 Wash. 14, 74 Pac. 1008.
It is urged by respondent that appellant is estopped to allege breach of contract, for the reason that, after being landed, he worked for several months according to the terms of the contract, being supplied with tools and subsistence by respondent, and finally returned to'Rome upon respondent’s ship free of charge. Ordinarily one may not claim the fruits of a contract without assuming its burdens. It is unnecessary, however, to invoke the rule here.
We are unable to see wherein the respondent has been guilty
We are not called upon to consider the tortious features alleged, other than as they, have to do with the alleged breach of contract. We deem the findings and conclusions of the trial court justified, and its judgment is therefore affirmed.
Mount, C. J., Dunbab, Eullebton, Hadley, and Cbow, JJ., concur.