State ex rel. H. G. Wells Lumber Co. v. Superior Court

Fullerton, J. On April 28, 1920, the relator, H. G. Wells Lumber Company, as plaintiff, began an action in the superior court of King county against the Western American Company, as defendant, to recover in damages for the breach of three several contracts to deliver lumber. At the time it appeared in the action, the defendant filed an affidavit of merits and demanded that the cause be transferred to Grays Harbor county for trial; averring in its application that it was a resident of, and was transacting business in, Grays Harbor county; that it was not transacting business, and had no office for the transaction of business, in King county at the time the causes of action set forth in the complaint, or either of them, arose, and that no person — 78 — resided therein on whom process against it might be served. Issue was taken by the relator on the facts stated for the transfer of the cause; each of the parties filing affidavits in support of their respective contentions. At the hearing the relator also introduced certain oral testimony. At the conclusion of the hearing, the court announced its intention .to transfer the action, whereupon the relator applied to this court for a writ prohibiting it from so doing. An alternative writ was granted, and the controversy now before us is over the question whether the writ should be made peremptory. The record shows, without substantial dispute, the following facts: The residence and place of business of the relator is in King county. The defendant’s mill and its principal place of business is in Grays Harbor county. In May, 1919, the relator sent to the defendant three several orders for lumber, directing it to ship specified quantities of lumber to the relator’s customers, the first of whom resided in the state of Michigan, the second in the state of Minnesota, and the third in the state of Montana. The defendant accepted the orders in writing, and thereafter shipped to the parties directed parts of the lumber ordered. The remainder of the lumber it failed to ship,, finally refusing to complete the shipments, so it is alleged in the complaint, on the 6th day of March, 1920. It appears that, between February 15, 1919, and July 23, 1919, the defendant maintained an office in the city of Seattle, King county, for the transaction of business, finally closing the same on the last named date. It appears also that, on May 10, 1919, the defendant entered into a contract with the Ames Ship Building and Dry Dock Company whereby it undertook to sell and deliver to that company at Seattle some four million feet of lumber. Certain of this lumber, some one hundred and fifty thou — 79 — sand feet, was to be subjected to a creosote treatment. With reference to tbis, tbe contract contained tbe following provision: “It is understood tbat this price includes all creosoted lumber. We (tbe purchaser) are to have tbis lumber creosoted to our requirements, at tbe best possible price prevailing at tbe time, and tbe charge for-creosoting to be billed back to your account.” Tbe contract also provided tbat tbe lumber was to be subject to inspection at tbe purchaser’s yard. This part of tbe contract, however, was not carried out literally. Some controversy having arisen over tbe first of tbe deliveries, an inspector was placed by tbe purchaser in tbe defendant’s yard at Aberdeen and the-lumber was inspected before or at tbe time it was loaded for shipment. It also appeared tbat, during tbe course of tbe shipments, an officer of tbe defendant went to Seattle on a few occasions to check up tbe deliveries with tbe purchaser. It was also alleged in an affidavit of an officer of tbe relator tbat tbe defendant bad, at tbe time of tbe com-' mencement of tbe action, a quantity of lumber near a creosoting plant in tbe city of Seattle which it held for removal or sale; tbat it bad, during tbe months March, April and May of tbe year 1920, employed and paid agents and representatives to tally and inspect lumber belonging to it then in King county which was shipped by it from its mill at Aberdeen to tbat county for delivery; and tbat, after tbe defendant closed its office for tbe transaction of business in King county, it immediately employed tbe Pacific Lumber Agency, a corporation having and maintaining offices for tbe transaction of business in King county, to act as its agent and representative in tbat county. These allegations are denied by affidavits filed by tbe defendant’s officers, and tbe allegation tbat it employed the Pacific Lumber — 80 — Agency to act as its agent and representative is also-denied in an affidavit of an officer of that company. By the terms of the statute (Rem. Code, § 206), the defendant is subject to suit in a transitory action in any county of the state where it transacts business, or transacted business at the time the cause of action arose, or in any county in which it has an office for the transaction of business, or in any county where a person resides upon whom process against it may be served, and the question presented is whether the record shows the existence of either of these conditions. On the disputed questions of fact we are clear that the decided weight of the evidence is with the defendant. It is clear, also, that the defendant did not have an office for the transaction of business in the county of King at the time the cause of action arose, and that no person resided therein, at the time of the commencement of the action, on whom process against it could be served. There is left, therefore, only the question whether the dealings of the defendant with the Ames Ship Building and Dry Dock Company constituted the transaction of business by it in the county of King within the meaning of the statute. That the mere shipment-of lumber to the company named, from the defendant’s mill at Aberdeen to the company’s place of business in King county, although subject to its inspection on arrival, would not be the transaction of business in that county, we are clear. As the defendant ’s counsel well say, a contrary rule would subject the mill company to suit in any county in the state to which it ships lumber, as lumber is almost uniformly shipped subject to the condition that it complies in quality and kind to the terms of the order, which of itself implies inspection by the purchaser. There is, of course, a distinction between the instant case and the general instances cited-, as in the one the pur — 81 — chaser’s inspection is probably conclusive as between the parties, while in the others the purchaser’s inspection is not so. Yet the governing principle must be the same. If the one constitutes a transaction of business at the place to which the lumber is shipped, the other must of necessity do so likewise. There remains then the question whether the visits made by the officers of the defendant to the ship building company’s offices in King county for the purpose of checking up deliveries constitutes a doing of business in King county. But these acts, as shown by the record, were only occasional or casual. It was shown that it happened not more than three or four times during the course of the delivery of the lumber. As we said in Rich v. Chicago, Burlington & Quincy R. Co., 34 Wash. 14, 74 Pac. 1008, a corporation to be within the rule must transact within the county some substantial part of its ordinary business, continuous in the sense that it is distinguished from merely casual or occasional transactions. Clearly, these acts were not part of the defendant’s ordinary business. The relator lays stress on that part of the contract between the defendant and' the ship company which relates to creosoting certain of the lumber. But an inspection of the contract shows that the defendant did not undertake the performance of this work, nor make the ship company its agent to perform the work for it. The work was to be done by the purchaser to its own satisfaction, the defendant agreeing only that the cost thereof should be applied on the purchase price of the account as a whole. It neither performed the actual work nor authorized the purchaser to perform the work for it. Its agreement to pay the cost of the work could in no sense be the doing of business in the county where the work was performed. — 82 — It is needless to reyiew the cases cited by the relator. In none of them were the facts here shown presented, nor do any of them sustain the principle for which the relator here contends. The alternative writ heretofore issued is quashed and a peremptory writ denied. • Holcomb, C. J., Parker, Bridges, and Mackintosh, JJ., concur.