Andrews v. Hoeslich

• Decision Date: 28 September 1907
• Citation: 91 P. 772,47 Wash. 220
• Parties: ANDREWS v. HOESLICH.
• Court: Washington Supreme Court

91 P. 772

47 Wash. 220

ANDREWS v. HOESLICH.

Supreme Court of Washington

September 28, 1907

Appeal from Superior Court, King County; George E. Morris, Judge.

Action by Jacob Andrews against Joseph Hoeslich and another. Judgment for plaintiff. Defendant Hoeslich appeals. Affirmed.

John E. Humphries and George B. Cole, for appellant.

Jay C Allen, for respondent.

CROW J.

This action, which was brought by Jacob Andrews against Joseph Hoeslich and the Uncle Joe Diamond Broker, a corporation, to recover possession of a diamond ring, has heretofore been before this court on an appeal prosecuted by the defendant corporation, and a statement of the pleadings and the facts involved may be found in the opinion then filed. 87 P. 947. At the former trial the defendant Joseph Hoeslich was not in court. He was served afterwards, and on July 28, 1906, served his answer, in which, after denying allegations of the complaint, he affirmatively pleaded that on August 27, 1904 the plaintiff left the ring with him as a pawn to secure a loan of $50; that he issued a pawn ticket to the plaintiff that thereafter the plaintiff sold and delivered the pawn ticket to him for the sum of $5, in addition to the $50 loan and that the plaintiff then ceased to have any further interest in the ring. This affirmative answer being denied the cause was tried on the issues thus joined between the plaintiff and the defendant Joseph Hoeslich. The trial court made substantially the same findings as those made on the former trial, sustaining all the allegations of the complaint, and further found that, within a week or so after the ring had been pawned, the defendant Joseph Hoeslich sold it without the knowledge or consent of the plaintiff; that in this action the plaintiff tendered to the defendant, and paid into court for his use and benefit, the sum of $75, which has ever since remained in the registry of the court; and that the ring was of the reasonable value of $216. Upon these findings a final judgment was entered in favor of the plaintiff for the return of the ring, or in case a return could not be had, for the sum of $141, being its value less the $75 in the registry of the court. The judgment further provided that, if the ring should be returned, the $75 in the registry of the court should be paid to the defendant; but that otherwise the plaintiff was not only to have judgment for $141, but the $75 should also be returned to him. The defendant has appealed.

The appellant's first assignment of error is based upon his exceptions to the findings of fact. We have carefully examined the evidence, and conclude that the findings are supported by its preponderance. The appellant raises the same question based upon the statute of frauds that was urged by the defendant corporation on the former appeal, but we now adhere to our views then expressed.

The appellant further contends that, as he was not in possession of the ring at the time of the commencement of this action of replevin, the respondent cannot recover. The common-law rule undoubtedly is that an action of replevin cannot be maintained against a defendant who is not in possession at the time the demand is made or the suit is commenced. This doctrine was announced in Dow v. Dempsey, 21 Wash. 86, 57 P. 355. In that case, however, it affirmatively appeared that the plaintiff instituted her action after she had learned and positively knew that the defendant, as sheriff of Spokane county, had parted with the goods by delivering them to a receiver, in obedience to an order of court. Here the court did not find, nor is it suggested by the evidence, that the respondent knew at any time prior to the commencement of the action that the appellant had sold the ring or parted with its possession. Under such circumstances, an exception must be recognized to the rule in Dow v. Dempsey, supra. Where, as in this case, property has actually been in appellant's possession and has been wrongfully transferred by him without respondent's knowledge, before the commencement of an action for the recovery of its possession, the rule that replevin will not lie against one not in possession at the time of the commencement of the action will not obtain. The evidence and findings show that the appellant's disposition or sale of the ring was wrongful. In an action for the recovery of the possession of personal property, when it appears for the first time during the progress of the trial that the defendant theretofore in possession had, prior to the commencement of the action, without the knowledge or consent of the plaintiff, wrongfully disposed of the property, it would be a rank injustice for any court to hold that the plaintiff cannot for that reason recover. Many well-considered cases hold that the action does not fail under such circumstances.

Wells on Replevin (2d Ed.) § 145; McBrian v. Morrison, 55 Mich. 351, 21 N.W. 368; Gildas v. Crosly, 61 Mich 413, 28 N.W. 153; Helman v. Withers, 3 Ind. App. 532, 30 N.E. 5, 50 Am. St. Rep. 295; Holliday v. Poston, 60 S.C. 103, 38 S.E. 449; Latimer v. Wheeler, 3 Abb. Dec. (N. Y.) 35; Ellis v. Lersner, 48 Barb. (N. Y.) 539; Ross v. Cassidy, 27 How. Prac. (N. Y.) 416; Brockway v. Burnap, 16 Barb. (N. Y.) 309; Nichols v. Michael, 23 N.Y. 264, 80 Am. Dec. 259; Harkey v. Tielman, 40 Ark. 551. In the last-mentioned case the Supreme Court of Arkansas said: 'Actual possession of the property by defendant is not always essential at the time of the writ. That would be a very inconvenient rule, which would enable one who had wrongfully taken or detained property from the owner to refuse to deliver, and hold to the last moment before the writ, and then evade a suit by a transfer of possession. His successor might do the same and his after him, and so on toties quoties, until the costs of writs to the owner would consume the property. When one is wrongfully detaining property and refuses it on demand, he is liable to the action, although it may not remain in his possession when suit is brought.' In Sinnott v. Feiock, 165 N.Y. 444, 59 N.E. 265, 53 L. R. A. 565, 80 Am. St. Rep. 736, the Court of Appeals, in a well-considered case, held that a defendant is not liable in an action of replevin for the recovery of...