Pacific Commercial Co. v. Northwestern Fisheries Co.

Citations

• 115 Wash. 608
• 197 P. 930
• 1921 Wash. LEXIS 780

Syllabus

<p>Sales (164)—Remedies of Buyer—Damages—Evidence—Admissibility. In an action by a buyer of canned salmon for damages under a written contract providing for shipment by steamer to Manila, upon an issue of mutual mistake in the steamer provision and waiver of such provision by the seller, evidence that the seller knew there was a scarcity of space on steamers for Manila owing to war conditions, and that the seller delivered the fish to a sailing vessel for shipment, accepting bills of lading therefor without any protest, was properly submitted to the jury.</p> <p>Pleading (109)-—-Amendment—Condition of Cause and Time foe. Trial amendment of a complaint following the impaneling a jury was not error, where the jury was discharged and the ease postponed in order to give the defendant time to meet the changed plea.</p> <p>-Sales (166)—Remedies of Buyer—Damages—Instructions. In an action for damages for the bad condition of a shipment of salmon, discovered after arrival at Manila, it was not error for the court to instruct the jury that the purchaser would be entitled to recover, if such condition of the fish was not the result of being shipped in a sailing vessel instead of by steamer as the contract provided, since the purchaser’s breach in shipping by sailing vessel would not defeat the recovery if the bad condition of the fish was due to defective canning instead of mode of shipment.</p> <p>Same (157)—Remedies of Buyer—Evidence—Question for Jury. A contract of sale of canned salmon providing that the exact loss for blown, puffed or swelled tins should be established by “independent survey”, contemplated an examination of the shipment on arrival at destination by an unbiased and competent person, and the testimony of the surveyor as to his qualifications was sufficient to carry the question to the jury.</p> <p>Same (178)—Action for Breach—Evidence—Admissibility. Under a contract of sale of canned salmon allowing recoupment if more than one per cent of the cans were “bl