Coos Bay Manufacturing v. California Selling Co.

RICHARDS, J.

This is an appeal from a judgment in plaintiff’s favor and an order denying defendant’s motion for a new trial. The action was brought against the California Selling Company, Sunnyvale Canneries, Napa Valley Improvement Company, Napa Valley Packing Company, corporations, and against George H. Hooke and Julius Wolff, defendants, to recover the sum of $7,872.02, alleged to be due from said defendants for certain “box shook” sold and delivered to them. The answer of the defendants ivas in the form of a general denial. Upon the trial the plaintiff dismissed the action against all of the defendants except California Selling Company, the appellant herein, and recovered judgment against it for the full amount of its claim.

The first contention of the appellant is that the evidence is insufficient to justify the decision of the court. The evidence discloses that the box shook in question was ordered from the plaintiff by and in the name of the Napa Valley Packing Company, and was shipped to it and was charged upon the books of the plaintiff to the said Napa Valley Packing Company.

The facts upon which the plaintiff relies to sustain its judgment against the California Selling Company are substantially as follows: The Napa Valley Packing Company was organized as a corporation in 1901 for the purpose of canning, preserving, packing, handling, and dealing in fruits, vegetables, etc., and for some years it owned and operated its own packing-house, and preserved and handled these products under its own labels, and had an established line of customers and of trade. In the year 1908 its factory was destroyed by fire and was not rebuilt, and at the close of that year, according to the testimony of Mr. Hooke, about all that the Napa Valley Packing Company had left was its labels and its reputation for packing. The California Selling Company was organized as a corporation in the latter part of the year 1908, with George H. Hooke, Julius Wolff, and Mary L. Baraty as its organizers and stockholders, Mr. Hooke was made presi

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dent; Mr. Wolff, who was the president of the Napa Valley Packing Company, became vice-president and manager, and Mary L. Baraty, who had also been secretary of the Napa Valley Packing Company, became secretary of the new corporation. The former offices of the Napa Valley Packing Company were taken over by the California Selling Company, who paid the rent thereafter, although the former occupant still maintained desk room there and had its name on the door. In the early part of 1909 the order for the box shook was placed with the plaintiff by Mr. Wolff in the name of the Napa Valley Packing Company, and the material was received in due course. There were two payments made on account of this order, one of $464.31 in August, 1909, and another of $560 in September, 1909. It does not appear by whom the first of these remittances was made, but the second was by the check of the California Selling Company. While the material was in the course of delivery several letters passed between the California Selling Company and plaintiff, in one of which the order for this material was referred to as “our contract.” The box shook when received was sent out in lots as ordered to various packing-houses, and in several specifically proven instances was billed by and shipped as the property of the California Selling Company, and was paid for in checks drawn to it. During the year 1909 the Napa Valley Packing Company, according to the testimony of Mr. Hooke, had no credit, and for that reason its name did not appear on the books of the California Selling Company, and whatever business the latter company did with it was done in the name of Mr. Wolff, the president of the one and the vice-president and manager of the other corporation. There was also offered in evidence the record of an action brought in that year against the Napa Valley Packing Company by one of its creditors to recover a considerable sum of money, in which judgment was had against it, and an execution issued which was returned unsatisfied. The defendant objected to this evidence, and now complains of its admission as error,. but we are of the opinion that it was admissible as in some degree tending to show that the Napa Valley Packing Company was at the time in a practically insolvent condition.