Deller v. Long

Webster, J. — The single issue presented to the superior court in this case was whether the defendants, by verbal contracts, expressly guaranteed to pay plaintiff’s assignors a fixed and stipulated net price for a number of boxes of apples which had been delivered to the defendants. It was the contention of the defendants that the apples had been received by them as commission brokers in the usual course of business, and that no guaranty of price had been made. The issue was purely one of fact. The trial court made findings to the effect that the contracts actually entered into between the parties were as alleged by the plaintiff; namely, that the defendants guaranteed a fixed net price for the apples. Defendants appeal. The certificate to the statement of facts recites: “The above and foregoing statement of facts contains all of the material facts, matters and proceedings heretofore occurring in the plaintiff’s case only in said cause, and not already a part of the record therein, and contains all of the plaintiff’s evidence oral and written therein.” [373] The record does not purport to contain all of the evidence produced upon the trial, nor does it appear from the certificate that such portion of the record as is brought here contains all of the material facts, matters and proceedings occurring at the trial and not already a part of the record, nor that it contains such thereof as the parties have agreed to be all that are material. Under such a certificate, it must be presumed that the statement does not include all of the material facts. Taylor v. Andres, 83 Wash. 684, 145 Pac. 991; State ex rel. Miller v. Seattle, 45 Wash. 691, 89 Pac. 152; Kirby v. Collins, 6 Wash. 297, 32 Pac. 1060. In this condition of the record it is impossible to try the case de novo on the facts. The findings clearly support the judgment, and this is the only question we are at liberty to review. Pack v. Peabody, 58 Wash. 76, 107 Pac. 839; Lohman v. Claussen, 55 Wash. 408, 104 Pac. 624. We conclude that the judgment must be affirmed. Ellis, C. J., Morris, Main, and Chadwick, JJ., concur.