107 Wash. 353 | Wash. | 1919
Both parties have appealed from the judgment below, and they will be referred to herein as plaintiff and defendant. The plaintiff, a wholesale dealer in lumber, brought this action, alleging that, in January, 1916, it entered into a written contract with the defendant by which the defendant agreed to sell, and the plaintiff agreed to buy, 200,000 feet of select and better tent stock, worked to pattern, of certain specified sizes and dimensions, at $25 per thousand, “Terms: 90 per cent advance on net invoice with bill of lading; final settlement on receipt of consignee’s report and expense bill, less usual 2% discount. Bate 55c less 5% on the net to us. Prices f. o. b. 55c rate.” It was further provided in the order: “You may commence shipping any time within the next two or three weeks, and let a car go forward at the rate of one every two weeks or every week. ” It is further alleged, that
The answer admitted only the corporate existence of the parties; denied that the contract was one of purchase and sale; and alleged that plaintiff is and was a lumber broker and sale’s agent for lumber, and for a long time before the making of this contract had been employed to a greater or less extent by the defendant as a sale’s agent, selling its output upon a commission of five per cent; that plaintiff represented, at and before the making of this contract, that it had sold the lumber described in the contract to a customer in St. Louis at the prices named in the contract, and that its only profit upon the transaction was to be a five per cent commission on the net amount realized; whereas, in fact, the plaintiff had not sold such lumber, or any part thereof; and that, after two cars had been shipped, the plaintiff was wholly unable to handle the remainder of said lumber, directed shipments to be withheld, and thereafter failed and refused to give- any shipping instructions; that defendant was, and for a long time remained, ready, able and willing to ship the remainder of the lumber, but finally, because of the misrepresentations as to the sale, which it then discovered, and the failure to give shipping instructions,
The case was tried to the court without a jury, resulting in findings to the effect that the transaction set out in the complaint was one of purchase and sale; that the relation of principal and agent did not at any time exist between the defendant or its assignor and the plaintiff; that defendant had breached the contract which is described in the complaint, and that plaintiff was damaged by such breach in the sum of seventy cents per thousand upon 145,820 feet of lumber not delivered, or a total of $92.70, for which sum judgment was entered.
By appeal and cross-appeal, each party is presenting here the claims which it presented in the trial court. But the issues are issues of fact only. Thus we have been called upon to make a careful study of the evidence in the case, and after having done so, we cannot say from the cold record, which alone is before us, that the findings of the trial court are not sustainable under the familiar rule which we have so long followed and so often announced. Miller v. Reeves, 101 Wash.
Main, Fullerton, Mitchell, and Mackintosh, JJ., concur.