25 Wash. 593 | Wash. | 1901
The opinion of the court was delivered by
Heber FT. Tilden, doing business under the firm name and style of H. FT. Tilden & Co., in San Francisco, brought this suit against Gordon & Company, a corporation, located and doing business in the city of Seattle. The plaintiff, respondent here, claims in the complaint that on the 8th day of July, 1899, he sold and delivered to the defendant, at the city of San Francisco, two hundred sacks of potatoes, weighing 22,905 pounds, and that defendant agreed to pay plaintiff therefor the sum of $1.70 per hundred pounds, or the total sum of $389.39; that, at the request of the defendant, the potatoes were delivered to the Pacific Coast Steamship Company at the wharf in San Francisco, consigned to the defendant at Seattle. It is alleged that the potatoes were sold upon the verbal order of one Fishel, who was the agent of defendant, that the whole sum is due and unpaid, and judgment is demanded for said sum. Hnder a second cause of action it is alleged that, prior to the time above mentioned, the
Both appellant and respondent seem to agree in this case that the verdict and judgment were erroneous. The respondent has not appealed from the judgment, but he has filed no brief, and has made no appearance in this court. From respondent’s motion for judgment in the record we infer that it is evidently his theory that, if he is entitled to judgment at all, he is entitled, under the pleadings, to the full amount claimed in the complaint. This, we think, must be true, at least with reference to the amount claimed in the first cause-of action. The complaint alleges a sale at an agreed price of $389.39, and that the whole amount is due and unpaid. Under the complaint there is no question of value involved, and, if respondent recovers, he must recover upon the express contract alleged, and not for reasonable worth and value. Appellant denies that there was any contract with respondent, and alleges that the potatoes were bought through Caldwell, as the representative of Fishel, in San Francisco. Under the issue tendered by
Since the judgment must be reversed for reasons already stated, it is not necessary to discuss other errors assigned on the introduction of evidence and the instructions of the court. The judgment is reversed, and the cause remanded, with instructions to the court below to set aside the verdict and grant the motion for a new trial.
Reavis, O. J., and Rullerton, Anders, Mount and White, JJ., concur.