Winchell v. Pacific Fruit & Produce Co. ( 1932 )

Motion to recall mandate denied October 4, 1932 ON MOTION TO RECALL MANDATE (14 P.2d 626) Defendant has filed a motion to recall the mandate and for permission to move for a reconsideration of its petition for a rehearing. This motion is based upon an affidavit in which the affiant states that an error was committed in the computation of damages, which involves no question of law, but only one of arithmetic.

A careful reexamination of the record leads us to the conclusion that defendant is in no position to urge the question it now seeks again to present. Defendant reiterates its claim that it should be allowed a credit of ten cents per box for marketing 11,522 boxes of plaintiff's fruit. We find more than a mere arithmetical computation confronting us when we consider this belated claim.

First, there is the question of pleading. It is admitted that an account existed between plaintiff and defendant involving, not only the receipts from the sale of plaintiff's fruit but, also, advances to plaintiff by defendant and interest thereupon. It is admitted in the pleadings that defendant accounted to the plaintiff, on account of the sale of the fruit consigned by the plaintiff to the defendant, for the sum of $12,881.79. There is no allegation in defendant's amended answer to the effect that this accounting was inaccurate, erroneous, or subject to any credit. No counterclaim is pleaded in the amended answer; therefore, upon this first question, that is, the question of pleading, defendant is in no position to urge the claim here made that this accounting should be reviewed and a smaller credit given to plaintiff.

Second, the question of proof confronts us. Mr. H.E. Waterbury, a witness called by defendant, testified that during 1929 and 1930 he was employed by the defendant in defendant's carlot shipping division. We quote from his direct examination:

"Q. Now, from there on will you describe to the jury what transaction took place with regard to this '29 crop as to the financing and the handling of the crop and your contracts?

"A. 1929 or '30?

"Q. '30.

"A. Through the season we advanced him from time to time sums of money according to the budget which had been prepared for orchard labor, spraying material, various necessary expenses in regard to the orchard and had been advancing that money up to the first part of August — about the 25th of August at which time we got down to date.

"Q. Do you know approximately how much was owing by the plaintiff to the defendant on or about the 25th of August?

"A. Yes, sir; checking up in our office in Portland, there was something over ten thousand dollars owing at that time." (T. of T. p. 39.)

In our original opinion, speaking through Mr. Justice CAMPBELL, we quoted from the cross-examination of this witness as follows:

"Q. * * * state if you know whether or not your accounting included all the storage and warehouse commission and one thing and another covered by the contract, did you take that off?

"A. Yes it was taken off."

We now quote one further question and answer from the cross-examination of this witness:

"Q. So, when you rendered the final statement sometime in June, you had been cleaned up, commission and all?

"A. Yes."

On the question of whether defendant had received its full commission as fixed by the terms of the contract, when it accounted to plaintiff for the sum of $12,881.79, there is no other testimony in the record.

We regret to differ with the learned counsel for defendant in their argument that only an arithmetical problem is involved in the question whether defendant is entitled to a remittitur of a part of the judgment herein because of a mistake or inaccuracy in the account admittedly made by defendant to plaintiff; but we feel that we must adhere to the principle that a counterclaim, to be enforceable, must be pleaded and proved. In this case, the claim urged was not pleaded. Not only that, it was affirmatively disproved.

Motion to recall mandate and for leave to move for a reconsideration of petition for rehearing overruled.