Barnett v. Everett Trust and Savings Bank, 2154--I
| Decision Date | 28 April 1975 |
| Docket Number | No. 2154--I,2154--I |
| Citation | 13 Wn.App. 332,534 P.2d 836 |
| Court | Washington Court of Appeals |
| Parties | , 17 UCC Rep.Serv. 306 Charles J. BARNETT and Zell V. Barnett, Respondents, v. EVERETT TRUST & SAVINGS BANK, Appellant, National Cash Register et al., Defendants. |
Newton, Newton & Kight, Henry T. Newton, Everett, for appellant.
Hunter, Gates & Patterson, Mark T. Patterson, Everett, for respondents.
Everett Trust & Savings Bank appeals from a judgment of $13,384 entered against it in favor of Charles J. Barnett and Zell V. Barnett, his wife, owner of the Chief Luigi Restaurant, for the alleged conversion of the restaurant.
In 1966, Charles J. and Zell V. Barnett, owners of a restaurant then known as the New Imperial Cafe & Cocktail Lounge, sold that restaurant, together with its equipment, to Henry and Virginia Roppolo on a conditional sales contract. The contract did not contain an 'after acquired property clause.' During the same year, Henry Roppolo died and the vendee's interest in the contract was sold to Albert L. Ray and Susann Ray, husband and wife. In 1967, Susann was divorced from Albert Ray and in that action acquired the marital community's interest in the restaurant.
A subsequent fire destroyed some of the property covered by the conditional sales contract and shortly thereafter a valid security instrument was taken on replacement property by Bargreen Coffee & Restaurant, Inc. In addition, in 1970, Everett Trust & Savings filed a security interest covering all equipment, fixtures and furnishings in the restaurant to secure a loan of approximately $12,000 to the former Susann Ray, now Susann Ray Parsons and her husband, Wayne Parsons. National Cash Register also had a security interest in two cash registers in the restaurant.
In February of 1971, the restaurant was closed and in June of the same year the restaurant's liquor license lapsed. In addition, during that period a fire occurred in the building in which the restaurant was located and the top floor of that building was removed by the owner.
On June 21, 1971, the Barnetts sent Notice of Forfeiture of Conditional Sales Contract to Susann Ray and Wayne Parsons. This forfeiture was confirmed by judgment in the Snohomish County Superior Court in August, 1971. From August 13 to September 13, 1971, Everett Trust & Savings repossessed from the premises certain equipment and personal property upon which it held a security interest. At the time of the repossession, the lease to the Parsons had been rescinded and the landlord was willing to lease the space to a responsible lessee, including the Barnetts, but nothing had been negotiated. On September 13, 1971, the Superior Court for Snohomish County entered an agreed order restraining Everett Trust & Savings from disposing of any of the property which it had repossessed.
The Barnetts then brought this action against Everett Trust & Savings, alleging disparagement of title and conversion. The conversion cause of action was sustained while the other was dismissed. The Barnetts were awarded the value of the equipment in place, subject to obtaining a lease of the restaurant; that figure was fixed at $15,000 less the $1,616 salvage value of the equipment.
The appeal questions whether the repossession of equipment by Everett Trust & Savings amounted to a conversion of that equipment. A conversion is
'the act of wilfully interfering with any chattel, without lawful justification, whereby any person entitled thereto is deprived of the possession of it.' (Salmond on the Law of Torts (9th ed. 1936), § 78, p. 310.)
Judkins v. Sadler-MacNeil, 61 Wash.2d 1, 3, 376 P.2d 837, 838 (1962); Wilson v. Wilson, 53 Wash.2d 13, 330 P.2d 178 (1958); Martin v. Sikes, 38 Wash.2d 274, 229 P.2d 546 (1951).
Everett Trust & Savings argues that it was legally justified in repossessing the equipment pursuant to the rights conferred upon it, as a second party, by RCW 62A.9--503, which provides in pertinent part:
Unless otherwise agreed a secured part...
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