Stowell v. Cashmere Apple Co.

215 P. 9, 124 Wash. 608, 1923 Wash. LEXIS 934

• Court: Washington Supreme Court
• Decided: May 10, 1923
• Docket: No. 17108
• Status: Published

Opinions

Mackintosh, J.

— The respondent brought an action for the conversion of a number of boxes of apples, and from a judgment in his favor, the appellant, who conducts a storage warehouse, has appealed.

The chief controversy is waged over the number of boxes of apples that were delivered on October 27, 1919, it being the contention of the appellant that one Dr. Harry Martin, who was working for him, delivered to the appellant’s warehouse, on that date, 1,076 boxes, the respondent claiming that Dr. Martin delivered but 388 boxes.

It was the custom of the appellant to give to the persons delivering loads of apples to its warehouse, receipts showing the number of boxes, and in the ex-Mbits in this case we find the following receipts in the name of Dr. Martin:

Exhibit 15. No date

1 load 80

Total 80

Exhibit 1. 10-27-1919

168

3 loads 78

Total 246

Exhibit 2. 10-27-1919

264

4 loads 88

Total 344

Exhibit 3. 10-27-1919

344

5 loads 62

Total 406

If the total is taken, of all of these exhibits, it would show 1,076 boxes delivered. But, as we read these exhibits, they plainly show the delivery of but 388 boxes, as contended by the appellant. The figures 1, 3, 4 and 5 preceding the word “loads” clearly refers to first, third, fourth and fifth loads, and the figures ' on the exhibits, other than exhibit 15, show the number of boxes contained in the prior exMbits, except that there is a palpable transposition of figures between exhibits 1 and 2, the total on exhibit 1 being 246 and the figures carried forward on 2 being 264, and that the receipt for the second load is missing.

That this is the correct interpretation of these exhibits is borne out and fully substantiated by a consideration of the testimony, which shows that Dr. Martin was a frail man, in ill health, who was working for the respondent during the apple season of 1919 for the purpose of gaining his strength, and to hold that, on that day, he delivered twenty-one tons of apples to the appellant’s warehouse is to attribute to him a degree of strength and physical ability which the evidence plainly shows he did not possess, and which, as a matter of fact, could be the proud possession of only a professional strong man. If he delivered any such amount of apples, it was necessary for him to have handled them twice, to have piled them on and off the truck; to have carried these thirteen loads it would have been necessary to carry the boxes a distance of two miles, from the ranch to the warehouse, and make return trips. Altogether, it was a physical impossibility. As a matter of fact, Dr. Martin, whose testimony appears in the record by deposition, does not testify that he accomplished any such feat, and the records of the two succeeding days in which Dr. Martin was engaged in the same work show that on those days • he delivered but the ordinary number of loads,-to wit, four and five.

Further substantiation of the appellant’s interpretation of the receipts is found in the fact that the receipts for October 27 were all uninitialed by the employees of the appellant, who received the apples at the warehouse, whereas, among the sixty-four or more exhibits in the record for receipts of apples, these are practically the only ones so unsigned, and are practically .the only ones which show a carrying forward of the total of prior loads delivered on the same day, the other receipts being, as we have said, initialed, and being merely for the number of boxes contained in the load delivered, with no other figures appearing upon the receipts.

Altogether, we are thoroughly satisfied that the trial court was in. error in arriving at a conclusion in conformity with the claim of the respondent, and for that reason the judgment is reversed and the ease remanded for a new trial.

Maix, C. J., Bridges, Fullertox, and Tolmax, JJ., concur.