Muscatel v. Storey, s. 35185

Citation354 P.2d 931,56 Wn.2d 635
Decision Date25 August 1960
Docket Number35186,Nos. 35185,s. 35185
PartiesJack MUSCATEL, David Muscatel, Sam Muscatel, and Sol Muscatel, d/b/a Muscatel Bros., Appellants, v. James H. STOREY and Constance B. Storey, his wife; Verne Hicks and Jane Doe Hicks, his wife; Dorothy P. Hicks and Josie St. Peter, Respondents. Josephine ST. PETER, Respondent and Cross-Appellant, v. Jack MUSCATEL and Jane Doe Muscatel, his wife; David Muscatel and Jan Doe Muscatel, his wife; Sam Muscatel and Sarah Doe Muscatel, his wife; and Sol Muscatel and Sarah Roe Muscatel, his wife, d/b/a Muscatel Bros., Appellants and Cross-Respondents.
CourtUnited States State Supreme Court of Washington

Moriarty, Olson & Campbell, Seattle, for appellants.

Kelley & O'Sullivan, Seattle, for respondents.

HUNTER, Judge.

This is an appeal and cross-appeal from judgments entered in two actions consolidated for trial, both arising out of the following facts.

The Illinois Investment Company, a Washington corporation, leased a hotel building in Seattle to Josie St. Peter and her husband, who is now deceased. On September 12, 1953, the St. Peters, with the written consent of the lessor corporation, assigned their leasehold interest to the defendants, James H. Storey and Verne Hicks. At the same time, they executed a bill of sale conveying certain personal property on the premises to the assignees. In consideration thereof, the assignees paid $5,000, and executed a promissory note for $22,000, secured by a chattel mortgage on the personal property. The consent to the assignment by the lessor corporation contained an agreement by the St. Peters to remain originally bound to all the terms and conditions of the lease.

In 1956, the Muscatel Borthers succeeded to the interests of the lessor corporation in the hotel property. Upon being informed that the lessees had falsified the records used to calculate the monthly percentage rental provided in the lease, the Muscatel Brothers commenced an action for unlawful detainer, to recover possession of the premises and damages. On August 24, 1956, the Muscatel Brothers recovered possession by writ of restitution and, on August 31, leased the premises to one A. Label. On September 7, 1956, by amended complaint, Josie St. Peter was joined as a party defendant in the unlawful detainer action.

Subsequently, Josie St. Peter filed a new and separate action against the Muscatel Brothers, for the wrongful conversion of the chattels subject to her chattel mortgage. The two actions were consolidated for trial. In the unlawful detainer action, the trial court entered judgment against defendants Storey and Hicks, awarding damages to the plaintiffs in the amount of $2,784.27, and dismissed the action as to defendant Josie St. Peter. In her action against the Muscatel Brothers, the trial court found they had converted the mortgaged chattels and awarded Mrs. St Peter damages in the amount of $14,646.36, and allowed statutory attorneys' fees.

Muscatel Brothers appeal from that part of the judgment entered in cause No. 35185, dismissing the action against defendant Josie St. Peter, and from that part awarding damages against defendants Storey and Hicks, for an amount less than the amount prayed for in the complaint. Josie St. Peter cross-appeals from the failure of the court to allow damages for attorneys' fees incurred in the conversion action.

Appellants first contend the court erred in dismissing the unlawful detainer action against respondent Josie St. Peter. We disagree. An action instituted under our unlawful detainer statute is intended to provide a party, rightfully entitled to possession of real property, with a summary method of recovering possession from one guilty of unlawful detainer, as defined in RCW 59.12.030.

The defendants in the instant case were served with a summons as prescribed by RCW 59.12.070 and RCW 59.12.080, which stated in part that '* * * this is an action of unlawful detainer.'

In Little v. Catania, 1956, 48 Wash.2d 890, 297 P.2d 255, 256, this court said of a summons issued pursuant to the same statutes:

'The special summons employed was wholly insufficient to give the court jurisdiction of the parties in a general proceeding. [Citations omitted.] The court obtained jurisdiction of the parties for a limited statutory purpose only--namely, to determine the issue of possession in an unlawful detainer action. Having obtained that limited jurisdiction, the court could not transform the special statutory proceedings into an ordinary lawsuit, and determine the issues and grant relief therein as though the action was [sic] a general proceeding.'

Such a summons does not confer general jurisdiction to determine the liability of Josie St. Peter to the appellants under her collateral agreement to remain bound to the original lessor contained in the consent to her assignment. Moreover, Mrs. St. Peter was not in possession of the hotel property. The trial court, therefore, correctly dismissed the action as to the respondent Josie St. Peter.

The appellants next attack the sufficiency of the judgment entered in cause No. 35185, against respondents Storey and Hicks. The judgment entered was in the amount of $2,784.27, a sum equal to the total of the doubled amount of the rent found to be due from January 1, 1956 to August 24, 1956, as authorized by RCW 59.12.170, and the amount of the utility bills paid by the lessors.

We must consider the question of the appellants' standing to maintain the action for the total amount of the judgment rendered. The record discloses that the trustee in liquidation for the Illinois Investment Company quitclaimed, to the Muscatel Brothers, the interest of the corporation in the hotel property on June 28, 1956. Such a deed conveys all the grantors' title and interest in the property and nothing more. Any right of action in favor of the corporation, arising out of the lease agreement, was a chose in action, which is personalty and therefore not conveyed by the quitclaim deed. Ennis v. Ring, 1956, 49 Wash.2d 284, 300 P.2d 773. No instrument assigning the chose in action was executed, consequently the appellants had no right to bring an action for any rent due prior to June 28, 1956. The judgment must therefore be reversed and remanded for modification consistent with this determination, and for the taking of further evidence in the discretion of the trial court.

As to the second cause of action, No. 35186, the appellants contend that Josie St. Peter was not entitled to maintain an action for conversion.

This court has long recognized the right of a chattel mortgagee to maintain an action in conversion against third parties for impairment of the mortgagee's security. Bunn v. Walch, 1959, 54 Wash.2d 457, 342 P.2d 211; Cashmere Valley Bank v. Pacific Fruit and Produce Co., 1939, 198 Wash. 363, ...

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  • Peyton Bldg., LLC v. Niko's Gourmet, Inc.
    • United States
    • Court of Appeals of Washington
    • April 24, 2014
    ...supra, 52 Wash. L. Rev.. at 871; Stoebuck, supra, 49 Wash. L. Rev.. at 1054, 1060; see also Muscatel v. Storey, 56 Wash.2d 635, 639, 354 P.2d 931 (1960); King County v. Odman, 8 Wash.2d 32, 36, 111 P.2d 228 (1941); Kneeland Inv. Co. v. Aldrich, 63 Wash. 609, 612, 116 P. 264 (1911). And clea......
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    • United States
    • Court of Appeals of Washington
    • November 19, 1985
    ...Standing in His Shoes, Against Third Person for Damage or Destruction of Property, 67 A.L.R.2d 582 (1959). See also Muscatel v. Storey, 56 Wash.2d 635, 354 P.2d 931 (1960); Sanborn v. Brunswick Corp., Inc., 2 Wash.App. 248, 467 P.2d 219 (1970) (secured party cause of action for In Stotts v.......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 14, 1984
    ...Wash.2d 1, 376 P.2d 837 (1962) (one with immediate right to possession may bring action for conversion of chattel); Muscatel v. Storey, 56 Wash.2d 635, 354 P.2d 931 (1960) (one without right to possession may not bring action for conversion); see also Restatement (Second) of Torts, Sec. 220......
  • McConiga v. Riches, 6319-III-4
    • United States
    • Court of Appeals of Washington
    • May 7, 1985
    ...75 Wash.2d 329, 450 P.2d 971 (1969). A quitclaim deed conveys only whatever title the grantor had in the land. Muscatel v. Storey, 56 Wash.2d 635, 354 P.2d 931 (1960). Consequently, the Riches did not pass any interest in the road to the Lays by the quitclaim The Lays last contend the easem......
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