Lilly v. Lilly, Bogardus & Co.

Citations

• 39 Wash. 337
• 81 P. 852
• 1905 Wash. LEXIS 867

Syllabus

<p>Appeal—Review—Findings—Sales—Evidence. The findings of the trial court establishing a sale will not be disturbed on appeal when supported by the direct testimony of two witnesses and corroborating circumstances, as against the conflicting evidence of one witness.</p> <p>Frauds, Statute oe—Sales—Part Payment. A payment and part performance, sufficient to take an oral sale of 100 tons of hay and oats out of the operation of the statute of frauds, is shown, where two witnesses testify positively that, when the contract was made orally with the president of the vendor on its behalf, over $1,700 in gold dust was delivered to him at Dawson, about $700 of which was in part payment for the goods, and in response to a telegraphic order, the vendor shipped five tons thereof to Dawson.</p> <p>Compromise and Settlement—Acceptance of Part—Accord and Satisfaction. The acceptance of a check for part of the sum claimed does not amount to an accord and satisfaction where, upon an angry dispute over the amount' due, the defendant gave the check under a direction from the plaintiff to pay what it was willing, and they would “scrap” over the balance.</p> <p>Sales — Failure to Deliver — Measure op Damages — Market Value at Point op Delivery. The measure of damages for the failure of the vendor to deliver hay and oats, sold in Seattle, for shipment to Alaska before the close of navigation, for resale on the Dawson market, is the net profit that could have been realized on the Dawson market, where by reason of the default the vendees were unable to obtain other goods during the current season.</p> <p>Costs—Jury Fee—Waiver op Jury After Payment. It is proper to tax as costs the advance jury fee paid by the prevailing party prior to a stipulation to waive a jury trial.</p>