45 Wash. 143 | Wash. | 1906
The appellants brought this action against the respondent to recover the sum of two hundred dollars and interest, which they alleged was the purchase price of certain articles of jewelry that they had theretofore sold and delivered to the respondent. The action was based upon a writing in the form of an order, bearing the signature of the respondent. The respondent, however, while admitting that the order sued upon bore his signature, denied that it was the order given by him, but averred, on the contrary, that it had been altered by the appellants or their agent, so that it did not express the agreement actually made or the agreement as originally signed.
On the part of the appellants, the evidence tended to show that the respondent gave to their traveling salesman a written order for certain goods; that the goods had been shipped pursuant to the order; that the respondent at first refused to receive them, but directed them to be returned to the appellants by the express company; that on the goods being returned, the appellants refused to take them back, whereupon the respondent directed the express company to return them to him, which was done. They also showed a demand for payment, and a refusal on the part of the respondent to pay. •
The evidence on the part of thé respondent tended to show that one M. Emanuel, styling himself, and styled on the printed literature of the appellants, the “Pacific Coast Manager” of the appellants, called upon the respondent and requested him to purchase a bill of goods of the appellants listed on a printed form which the manager had with him, costing $384.45. The respondent informed him that he could not use that quantity of the goods listed, and did not want to make so large an investment in any event, but said he would give an order to the amount of $200 if it could be made up of a small quantity of sterling jewelry, and the balance in Roger’s cutlery and tableware and gold-handled umbrellas. The manager consented to this and the articles were agreed
While the errors assigned are numerous they are discussed by the appellants under general heads, and it is in this manner that we shall consider them. It is first contended that the court in. permitting the respondent to offer evidence tending to show that the writing sued upon was not the contract executed by him, and did not conform to the agreement actually made, violated the rule of evidence to the effect that a parol contemporaneous agreement cannot be shown to vary the terms of a written contract. But we think this rule is without application to the facts shown by the record. Had it
It is next insisted that if the contract can be shown by parol to have been altered by the appellants, the evidence to that effect must be clear and comuncing, and that here it Avas not so. The only evidence upon this subject was that of the respondent and a person in his employ who was then in his place of business. They both testify substantially to the facts as we have recited them. The manager who took the order did not testify, and none of the appellants’ witnesses were questioned concerning the matter. On this branch of the case, therefore, we think the evidence sufficient to sustain the verdict of the jury.
It is argued further that the respondent was unable to state definitely Avhat he conceived the actual contract to be between
Finally, the appellants insist that the act of the respondent in directing the express company to return the goods to him was an acceptance of them, and estopped him from disputing the fact that the order had been properly filled. But clearly this is not so unless the respondent did in fact accept them, or did, in some manner, convert them to his own use. The respondent was under no obligation to return the goods to the appellants. He had the right to take them from the carrier and examine them; and if, after such examination, he found that they did not comply with the order, to hold them himself subject to the appellants’ direction. He did not lose this right by delivering them to a carrier to be returned to the appellants. .The carrier was his agent, and, hence, he was not guilty of accepting them or converting them to his own use when he took them from the carrier to prevent their sale for shipment and storage charges.
We find no error in the record and the judgment will stand affirmed.
Mount, C. J., Hadley, Dunbar, Root, and Crow, JJ., ■concur.