108 Wash. 265 | Wash. | 1919
The respondent sued for damages for the negligent handling by appellant of three carloads of Bartlett pears. The verdict of the jury was for the plaintiff, and the appeal is from the judgment entered thereon. The facts are substantially as follows: the appellant is a Washington corporation; those interested in it and controlling its. affairs are as follows: The Wenatchee North Central Fruit Distributors, the Idaho-Oregon Fruit Growers’ Association, the Montana Fruit Distributors, and the Western Oregon Fruit Distributors. The subsidiary corporations constituting the appellant were its active agents and exercised extensive powers. In 1917, the appellant, acting through its agent, the Western Oregon Fruit Distributors, solicited and obtained the promise of the business of the respondent for that year. There was an agreement between the parties to the effect that the appellant should first find purchasers in the east for the respondent’s fruit, at certain fixed prices, which sale was to be confirmed by the respondent, and the cars of fruit were to be shipped in the name of appellant to the persons to whom sold, and it was to be the appellant’s duty to take charge of the shipment and see to the delivery thereof and the collection of all moneys. The appellant maintained a fruit inspection bureau at Chicago, and one of the important features of the contract was that cars of fruit shipped east of Chicago should be carefully examined at that point. If, upon inspection, the fruit appeared to be ripe and would not stand further shipment, the appellant was to notify respondent, who would give further instructions with reference to its disposition. If, for any reason, the purchaser of the fruit refused to take the
It appears that, when the first car reached Chicago, the fruit was inspected and found to be ripe and in no condition to stand the delay of shipment on to Washington. It was in such condition that it should have been disposed of at once on the Chicago market. The appellant did not notify respondent of the condition of the fruit when it reached Chicago, but notwithstanding its ripe condition, permitted it to go forward to Washington. When the car arrived there, the fruit was overripe and the purchaser refused to accept it. Still the appellant did not notify respondent of what had happened at Washington. Instead, it shipped the fruit to Philadelphia, where it was sold at auction, bringing a relatively small price. It appears from the testimony that this fruit could have been sold at Chicago at the time it was there at $2 per box, and that, had respondent been notified of its condition when it reached Chicago, it would have instructed that the fruit be disposed of there at that price. The second car was also inspected at Chicago, and when it reached Washington the purchaser, W. H. Harrison, refused to take the same unless it was reduced in price twenty-five cents per box. Respondent was not notified of this fact. Appellant caused the car to be shipped to Philadelphia, where the fruit was sold at auction. It appears
While the appellant does not concede that the facts are as above related, yet the evidence was sufficient to convince the jury, and is sufficient to convince us, that the foregoing statement is correct.
Appellant makes two chief claims of error; one being that there is a fatal variance in the proof from the allegations of the complaint, and the other that in no event, under the testimony, was the respondent’s contract made with it, and therefore it could not be liable. Appellant claims that the complaint alleges that these cars of fruit were given over to its exclusive control and°disposition, whereas plaintiff’s testimony was to
“I am going to reserve my statement, and I want to be sure that we understand counsel as to one point that seems to me quite important. Counsel says that in each instance the exclusive control of these cars was retained by the plaintiff, that is, by the Umpqua Valley Fruit Union. In his complaint, for instance, in paragraph 4 of the first cause of action, they say that the plaintiff turned over the exclusive control and delivery of said fruit to said defendant as provided by said agreement. Now, I do not particularly care which theory they adopt, but I want to be sure that they adopt one now and stay by it. ’ ’
The plaintiff’s counsel then stated: “They had no power of disposition of the fruit without notice to the shipper.” It would seem, therefore, that, at the very outset of the trial, the appellant knew what the contentions of the respondent would be in these regards, and that the complaint would be considered as amended. Appellant did not claim surprise, nor did it ask for a continuance on account of the alleged variance. We are of the opinion that it is not in any position to complain of any alleged variance.
But it .is contended that the testimony shows that the respondent’s contract was made with the Western Oregon Fruit Distributors and not with appellant. It would not serve any useful purpose to go particularly into the testimony, which convinces us, and appears to have convinced the jury, that the contract was made
In the course of the defense, the appellant undertook to prove, by the oral testimony of one of its witnesses, that the Western Oregon Fruit Distributors was a corporation. The trial court rejected this testimony on the ground, apparently, that the existence of a corporation could not be proved by parol. Appellant claims that this ruling was erroneous. In this we agree. This court has held in so many cases that the fact of incorporation may be proved by oral testimony that it is not necessary to cite the decisions. However, it did not make the slightest difference whether *the Western. Oregon Fruit Distributors was a copartnership or a corporation, or any other manner of organization. The testimony sought to be elicited was entirely immaterial. The court might well have sustained the objection on the ground that it was immaterial. Such being the case, the appellant was not injured by the ruling of the court.
As we read the testimony, the appellant’s chief defense on the merits was that it had used its best judgment in the handling and disposition of respondent’s fruit, but made very little effort to show that it had notified respondent of the various troubles that fruit had gotten into at Chicago and Washington. Evidently, the jury believed that the respondent was entitled to this notice. All these questions were properly
We find no error in the record, and the judgment is affirmed.
Holcomb, C. J., Mount, Fullerton, and Parker, JJ., concur.