Anderson v. Hilker

Root, J. In September, 1903, the appellant Mrs. Hilker, who was then Miss Swift, was the owner of a building known as the “Ocosta Hotel,” with the furniture therein, situated at Ocosta, Washington. On or about that date, appellant A. J. Hilker, acting for himself and said Miss Swift, or acting solely as the agent of Miss Swift, or Miss Swift acting for herself (this matter being an issue of fact involved in the case), entered into a contract with respondent, whereby the latter was to move said building across Cray’s Harbor to the city of Hoquiam. In order to do this, a considerable amount of cribbing was necessary, and scows capable of carrying said building across said harbor were to be provided. There is a conflict as to who was to furnish the scows. Respondent commenced the work, but, after getting the building to the edge of the water, left the same there for some considerable length of time—he claiming that the delay was occasioned by bad weather, and by delay in securing the scows. At length he sent men to resume- the work, as he contends; but, as appellants contend, to repair the- cribbing and put the building in position to leave it through the winter before going ahead with the moving thereof. Thereupon appellants took possession of said building and employed other parties to remove the same. Respondent sues appellants for damages occasioned by the alleged breach of contract. Appellants join issue [634] upon many of the material allegations of the complaint, and plead a counterclaim for damages, occasioned by the neglect and delay on the part of respondent. Respondent recovered judgment against both appellants. They appeal to this court. Several errors were assigned in the matter of the introduction of testimony. One Robinson, who was in charge of the United States Weather Bureau, was permitted to read in evidence the records of his office as to the weather during the period involved. To this, exception was taken. These records were competent evidence. 1 U. S. Rev. Stats. Supp., p. 879; Bal. Code, § 6043. See, also, Fairhaven Land Co. v. Jordan, 5 Wash. 729, 32 Pac. 729; Garnean v. Port Blakeley Mill Co., 8 Wash. 473, 36 Pac. 463; Smith v. Vesey, 30 Wash. 18, 70 Pac. 94. Error is assigned in the brief upon the action of the trial court in permitting the captain of a tugboat to read from his log book as to the condition of the weather during said period. It does not appear from the record, however, that any objection was made or exception taken to the introduction of this evidence. Hence, it cannot be reviewed. Complaint is made of the action of the trial court in permitting respondent to detail certain conversations had with various owners of scows, which he was endeavoring .to secure to be used in the moving of this building. Said evidence was merely to show an effort made to secure scows, and a delay caused by inability to promptly secure the same. As each side claimed that it was the duty of the other to provide these scows, and as the conversation detailed was part of the transactions having to do with the effort to secure said scows, we cannot see that the admission of these statements was prejudicial to appellants. [635] Upon the measure of damages the court gave the fob lowing instruction: “If you find in favor of the plaintiff in this case, then I instruct you that the plaintiff would be entitled to recover, as damages, the amount of his expenditures in the performance of the contract up to the time of the stoppage, that is to say, he would be. entitled to reimbursement for his expense in so far as he proceeded with the performance of the contract, and in addition to his expenses he would be- entitled to recover the profits which he would have realized by performing the whole contract, if he had performed it; the plaintiff’s recovery, if he recovers at all, should include these two. items, namely, the expense incurred in part performance, with a further item of the profits which he would have made by the performance of the whole contract.” Appellants contend that this instruction is erroneous. We think it is a correct statement of the law applicable here, and that no error was committed by its being given. We deem it to be in accord with the holding of this court in the case of Chase v. Smith, 35 Wash. 631, 77 Pac. 1069. The court also gave the following instruction: “I instruct you that, if you find from the evidence in this case that no definite time was fixed for the completion of the contract by Anderson, then the law will imply reasonable time, and what would be a reaonable time is for the jury in this case to determine, taking into account the difficulties in securing scows, conditions of the weather, and all of the surrounding circumstances.” It is contended by appellants that this instruction assumes that there were difficulties in securing the scows, and that the conditions of the weather were bad. We do not think that there is anything in the language indicating any idea of the court as to what the condition of the weather was. As to the difficulties in securing scows, there seems to have been no dispute but that there were difficul [636] ties. 'As to whether these difficulties were such as to justify either of these parties, was a question upon which the court expressed no opinion whatever in this or any other instruction. We do not think appellants were prejudiced by reason of these matters. As to the terms of the contract, condition of weather, and amount of damages, there was much conflict in the evidence. There being sufficient competent and material evidence to sustain the jury’s conclusion upon these matters, the same will be here deemed conclusive. The complaint alleges that appellants were husband and wife at the time of the making of this contract. Upon the trial it was shown, and the court found, that said parties were not husband and wife at that time, but had married prior to the commencement of this action. As to whether or not a judgment could be sustained as against Mr. Hilker must depend upon the question of whether or not the evidence shows him to have acted as an agent merely for Miss Swift, subsequently his wife, or whether he was acting for her and himself jointly when the contract was made, or whether she made the contract herself. We think there is no evidence justifying a verdict against Mr. Hilker. He had no interest in the property. Respondent’s own testimony shows that he knew, or had good reason to know, that it was Miss Swift’s property, and that the contract was being made with her or for her benefit. The judgment as to Mr. Hilker is reversed, and the cause remanded, with instructions to dismiss the action as to him. As to appellant Mrs. Hilker, the judgment is affirmed. Mount, C. J., Crow, Rudkin, and Dunbar, JJ., concur. Fullerton and Hadley, JJ., took no part.