Frost v. Ainslie Lumber Co.

The opinion of the court was delivered by Stiles, J. At the trial of this cause the defendant, at the close of plaintiff’s testimony, moved for a nonsuit on the ground that the complaint did not allege the corporate character of the defendant, and that the person who was shown to have made the contract sued on did not appear to have been the authorized agent of the corporation. The complaint contained no other reference to the defendant as acorporation than what was in the title of the action, which was: “F. M. Frost v. The Ainslie Lumber Company, a corporation duly organized and existing and doing business under and by virtue of the laws of Washington.” As against a demurrer, perhaps the complaint might have been held defective. But the defendant appeared, and without any objection answered thus: “The defendant, for its amended answer to the complaint herein, denies each and every allegation of said complaint except as hereinafter stated.” The remainder of the answer contained a counter claim, and made no reference to the complaint. Under [243] strict rules of pleading the plaintiff might, upon the insufficient denial of the complaint, have claimed that his case was made without introducing any testimony, thus leaving the affirmative to the defendant upon its counter claim. The agency, therefore, stood admitted, and the allegation that the defendant was a corporation was waived by its pleading a counter claim as though it were in fact a corporation. The nonsuit was properly refused. The action was brought to recover for twenty-five and one-half tons of hay at $13 per ton, sold by plaintiff to defendant, less $5 admitted to have been paid, in all $326.50. At the time the hay was sold, August 7,1890, it was piled up, with as much more of the same kind, in a shed on plaintiff’s farm. The understanding was that it was to be baled at once and taken away, defendant having itself to do the bailing and hauling. Part of the bailing was done August 8th and 9th, and the remainder August 19th to the 23d. A few tons were hauled to the defendant’s place when it was found to be in bad condition, and the remainder was left at the place where it had been bailed, the defendant refusing to remove it on the ground that it was in an unsalable condition when the purchase was made, and that it was not really hay at all, but a mass of weeds and ferns mixed with timothy, which was practically worthless. The defendant also claimed that plaintiff, and his co-owner of the hay, misrepresented its condition and quality for the purpose of inducing defendant to buy, and that it was misled by the misrepresentations. Plaintiff denied the charge of misrepresentation and asserted that he sold the hay at a price below the market rate for good hay, and upon the urgent solicitation of the defendant, after stating to its agent that there was hay there that he would be ashamed to sell to any person. The testimony on all the contested points was too contradictory for any consideration by us, and the court below very properly left its effect to the jury. [244] The court gave the jury instructions to which there was no exception, but refused to give eleven instructions requested by the defendant, and the principal errors are based upon this refusal. The first of these refused instructions was as follows: “If the jury believe from the evidence in this case that the plaintiff, in order to induce the defendant to enter into the contract set out in the complaint, represented, or ratified the act of another in representing, that the hay set out in the complaint was good hay, with the exception of some fern, when in fact the hay contained large quantities of other weeds than fern, and also contained wire grass and other obnoxious vegetation, and that said hay, on account of the presence of such weeds and wire grass, or by being improperly cured or kept, was not good hay, and was not suitable for the purposes for which the plaintiff knew the defendant purchased it, then and in that event the defendant had a right to annul the contract and to refuse it or pay for the hay.” This instruction is a fair sample of the whole of those proposed, and its vice is that it was constructed upon the theory of the defendant’s counter claim, and not upon the evidence. There was no evidence that the plaintiff made any representation whatever about the hay, or that he invited the purchase of it in any manner. Skinner’s half of the hay was brought and partially paid for at $12 per ton by defendant before Frost was approached. Then he refused to sell at less than $14, and not until a subsequent day, and whenhewas informed that Skinner had sold, did he consent to take $13. No one ever told Frost what Skinner had said about the hay,' nor does it in any wise appear that either was agent for the other. Nor did it appear that the hay had been badly cured. It was suggested that bad curing might account for its alleged heated and sweating condition, but it was also stated that so large a pile of hay, at that season of the year, was sure to be in a sweat and in danger of spoiling. Again, all of the instruc [245] tions asked were based upon tbe theory that the plaintiff was the seller of an article for a particular purpose, which article had secret defects unknown to the defendant, and which could not have been known to it until the bailing began. But such was not the case. The hay was piled up twelve or fifteen feet high, and forty-five feet square, and was free to the defendent’s agent to examine, and he was invited to examine it. True, he could not have seen very far into the pile, but he scarcely looked at the outside even. Had he examined, he must have seen the character of it, for no one testified that the outside differed from the inside, except that the latter was heated. As to the heating, it appeared that defendant was in the habit of buying large quantities of hay yearly, and its agents were in as good a position to know the probable effect of stacking up such a quantity of hay at that time of the year as the plaintiff. We think it clear that the defendant had notice from the plaintiff that he was not selling first class hay, as it was not disputed that he stated to the agent that other timothy hay which he had could not be bought for less than $17. The court’s instructions, we consider, fairly covered the case, and those of defendant, while many of them stated correct abstract propositions, would have tended to confuse the jury, because in each instance they assumed some state of facts on which there was no testimony. The jury brought in a verdict for $287.50, and the defendant alleges error because the court would not receive it, but told the jury they must find for the full sum claimed, or nothing. In our judgment, the court did precisely right. It was either a mistake or a compromise verdict, which, under the pleadings, the jury could not return. Thompson on Trials, § 2606. On all points, therefore, the judgment is affirmed. Dunbar and Scott, JJ., concur.