Ach v. Carter

The opinion of the court was delivered by Reavis, J. Appellants were copartners under the name of the Tacoma Woolen Mills Company, and were engaged in the manufacture of woolen merchandise. The complaint alleges that appellants entered into a written agreement with respondent on the 17th of September, 1897, by the terms of which appellants agreed to pay respondent three per cent, on all sales made in San Francisco and for all goods sold; also to pay the same commission on all orders received direct from respondent’s trade, and agreed to allow him one per cent, extra on all bills which he might discount. Respondent agreed to represent the goods of appellants to the trade, and to discount such bills as he might [141] desire at the rate of one per cent. Thereafter respondent made a sale of appellants’ merchandise to a San Francisco firm in the amount of $15,590, and demanded his commission of three per cent, thereon, amounting to $46'7.70, and judgment was demanded for that amount. Appellants’ answer admitted the contract and the sale, and the ability and readiness of the San Francisco firm to pay, and, for a further defense, alleged the subsequent cancellation of the written agreement set out in the complaint, and the substitution of a parol agreement therefor, different from the written agreement only in the particular that appellants should send to respondent statements of accounts of sales made by him, and respondent would thereupon remit to appellants the amount of such statements, less a commission of four per cent. Appellants also admitted the sale of the merchandise by respondent to the San Francisco firm, and the ratification of th*e sale by appellants. A jury being waived, the evidence was heard by the court. At the conclusion of the trial, the court, in the form of an opinion, reviewed the evidence and made its conclusion of facts, and also of law. Counsel for appellants then excepted to the findings of fact and conclusions of law in the opinion. The court afterwards filed the opinion, and ordered that it stand for the findings of fact and conclusions of law in the case. Motion for a new trial was made and overruled. Counsel for appellants now complains that findings of fact were not made by the court as required by statute, and that the evidence does not support such findings, and that the judgment is not sustained by the findings stated in the opinion. It is true, the court concluded that the written agreement counted upon in the complaint was superseded by the agreement set forth in the answer, and which was claimed by appellants to have been substituted for the written agree [142] ment,- and seems to have given the respondent judgment upon the agreement stated in the answer; that is, that the terms of compensation to respondent provided for in the agreement set forth in the answer should be the measure of respondent’s compensation. This does not seem to be error, and it is supported by a decision announced in the case of Megrath v. Gilmore, 15 Wash. 558 (46 Pac. 1032). It is true, the findings of fact were not made in a separate paper from the conclusions of law, and do not conform to the requirements of the statute; but the appellants made no exception for that reason when they were first made by the court, but did except to such findings because not sustained by the evidence. If appellants had specially-directed the court’s attention to the form of the findings, and requested that they be specifically and separately stated as required by the statute (Bal. Code, § 5029), it would present another question here. But we do not think that appellants can now complain that the findings were not complete in substance and form. We have examined the evidence and are not inclined to disturb the conclusions of the superior court, and its judgment is affirmed. Gordon, C. J., and Anders, Dunbar and Fullerton, JJ., concur.