In general, this case contains issues of fact only. Questions of law are but incidental to the facts. The trial judge, as was his sole function, disbelieved the testimony of appellant's agent.
The contract entered into between the parties, among the other items sold, contained in clear and explicit language "One only Ultra-Thermique Permanent Wave Machine Complete 36-Connectors."
How it can be contended by the majority that the evidence preponderates against the finding of the court that the twelve additional protectors, rods, and heater clamps, were sold to respondents and were not delivered, is incomprehensible. Had the court found otherwise in the face of the evidence and the clear and explicit contract, it would have erred. There is, as the trial court said, "no ambiguity about the word `complete'." *Page 221
The finding of the trial court in behalf of respondents that the contract had been breached by appellant rather than by respondents is based upon competent testimony, believed by the trial judge, that, after the delivery of the equipment, respondents on several occasions verbally, by 'phone and also by letter, made requests of appellant to deliver the balance of the merchandise; that appellant, through its officer, had agreed to deliver the balance, but had failed to do so; that on August 3, 1935, respondent Roy Hastings went to the place of business of appellant in Tacoma and paid $54.96 on the contract, which paid up the contract to the 22nd day of that month, and said to the manager of appellant,
"I am giving you this check for two payments and I am not making any more payments until the rest of the equipment is delivered."
The prevailing opinion proceeds upon the assumption that the contract was rescinded by respondents. That is not correct. Respondents at all times stood upon their contract, and their cross-complaint is for damages for its breach. Appellant itself declared a forfeiture.
The judgment is right and should be affirmed. Hence, I dissent.
MAIN and MILLARD, JJ., concur with HOLCOMB, J. *Page 222