46 Wash. 555 | Wash. | 1907
This is an action to recover damages for breach of contract. The plaintiff alleged in his complaint that the defendant agreed with him that, if he would remove to Seattle and enter defendant’s employment, the latter would employ him for a period of one year as a fur cutter, at a salary of $25 per week during the months of November and December, 1905, and the months of January, August, September, and October, 1906, and at a salary of $20 a week during the months from February to July inclusive, in 1906; that in reliance upon such promise and in consideration thereof, the plaintiff immediately left Portland, Oregon, and removed to Seattle, and entered the employment of defendant about November 1, 1905; that the defendant had retained
Many specific assignments of error are set forth in the brief, which involve the single matter of the nature of the agreement between the parties. The chief propositions discussed by appellant are stated in its argument in its brief as follows:
“Was there any contract between the plaintiff and the defendant? If there was a contract, was it such a contract as was enforceable against the defendant? If there was an enforceable contract, was it such a contract as should have been-in writing to satisfy the requirements of the statute of frauds? And if the contract should have been in writing to satisfy the statute, should an oral statement have been admitted to ex
These questions arose under the denial of appellant’s motion for a nonsuit and its challenge to the sufficiency of the evidence. Under our views of the case, we need not argue all the points discussed in the briefs, for the reason that we think there was a written contract between the parties. Respondent, in answer to interrogatories propounded to him before the trial, answered that he based his right to recover upon a letter from appellant, of which the following is a copy:
“Seattle, Wash., Oct. 28, 1905.
“Wm. Schultz, Dear Sir. — I received your letter and was very sorry to hear that you were sick, and hoping this letter will find you in the best of health. In reference to work, I wish to state that Glandzman cannot do the work satisfactory for me, and as you have written to me before that you do not like your position, I wish you would come up and work for me rather than work elsewhere. As I have to have a man to do all my work, I have no doubt but what it will be all year round. I have told you when you were here, that no doubt that there was a better opening here than elsewhere. I hope you will make up your mind and come at once. In reference to the wages I will give you $25.00 a week for six months for the busy season, and give you $20.00 a week for the dull season. Hoping to see you Monday morning here I remain, Yours,
“Simmons Fur Co.”
The letter was introduced in evidence at the trial, and appellant contends that it does not amount to a contract for want of mutuality, and moreover that it is indefinite in its terms as to the time of employment. It is also urged that the court erred in admitting oral evidence touching the contract, inasmuch as respondent claims that the contract was in writing. Respondent, upon the other hand, takes the position that by his acceptance of the terms stated in the letter by his entering upon the performance thereof, the contract became mutual and both parties became bound thereunder. He also contends that the contract is sufficiently clear upon its face
Respondent argues that the expression “I have no doubt but what it will be all year round,” must be literally construed as meaning the absence of all doubt; therefore a certainty, an absolute agreement for one year. It must be conceded that a strict literal reading would seem to indicate such meaning, but appellant argues that the expression contains within itself a reservation of some doubt, and such may be true when viewed not so much with reference to the actual words employed as in respect to a provincial or possibly general usage and understanding of the words in similar connections. In view of the latter probability, it became necessary to look to other parts of the writing for further light upon the subject of the duration of the contract. Accordingly we find the statement “I will give you $25 a week for six months for the busy season, and give you $20 a week for the dull season.” The terms “busy season” and “dull season,” unexplained as they are in the contract, are ambiguous to those unacquainted with the fur trade. Oral testimony was therefore proper to explain their meaning. The testimony showed that what is called the “busy season” begins on September 1 each year, and extends continuously through the following six months, ending on March 1. The dull season covers the six months from March 1 to September 1. The letter which is the basis of the contract between the parties bears date October 28, 1905. It will therefore be observed that but aboxit four months of the then current busy season remained.
The contract was not lacking in mutuality. The letter contained an offer which was accepted, and the contract became complete as soon as respondent accepted the benefits of the. offer by beginning performance on his part. Smith v. Ingram, 90 Ala. 529, 8 South. 144; Woodbury v. Jones, 44 N. H. 206. The parol testimony admitted did not vary or contradict the terms of the written instrument, and it was not admitted for that purpose, but to explain, as it did, the meaning of the terms used. It was properly admitted and the interpretation of the contract therefore became a question for the jury in the light of this explanatory evidence. Stringham ■ v. Davis, 23 Wash. 568, 63 Pac. 230; Newman v. Buzard, 24 Wash. 225, 64 Pac. 139; Carr v. Jones, 29 Wash. 78, 69
On the above theory the jury were properly instructed, and we think the instructions were full and fair upon every phase of the case. Upon the defense of incompetence of respondent and that he abandoned the contract, there was much testimony, but there was also disputed testimony. The jury must have found against that defense; and, under the evidence in the record, it is not for us to say that the verdict is not sustained by sufficient evidence. The testimony showed that respondent was able to procure employment during a part of the remaining period covered by the contract, but not for all the time. The amount returned is within the testimony. The affidavits of two jurors alleging prejudice against appellant on the part of the jury and misconduct resulting therefrom are contradicted by affidavits of seven other jurors. We therefore find in the record no sufficient reason for disturbing the verdict.
The appellant asks a reversal upon the ground that the judgment was not entered by the clerk immediately after the verdict, but that it was signed by the judge after the motion for new trial was denied. The case of Harris v. Fidalgo Mill Co., 38 Wash. 169, 80 Pac. 289, is cited upon this point. In that case the court stated that no attempt had been made to vacate the judgment, and the appellant here urges that it has put itself in position to meet that point by moving in the court below to vacate this judgment. Reference to the former opinion will, however, show that the decision upon the point was not based upon the one ground of failure to move for vacation. That matter was mentioned merely incidentally. The opinion stated that such matters are largely directory; that the record showed that the judgment was a formal one, signed by the- judge and filed by the clerk. Such is the judgment here. There is no- showing that appellant was in any way prejudiced by the entry of the judgment at the time it was entered. This court held, in Brown v. Porter, 7 Wash. 327,
The judgment is affirmed.
Fullerton, Mount, Root, and Crow, JJ., concur.