Beecher v. Thompson

• Decision Date: 23 June 1922
• Docket Number: 16997.
• Citation: 207 P. 1056,120 Wash. 520
• Court: Washington Supreme Court
• Parties: BEECHER et al. v. THOMPSON.

207 P. 1056

120 Wash. 520

BEECHER et al. v. THOMPSON.

No. 16997.

Supreme Court of Washington

June 23, 1922

Department 2.

Appeal from Superior Court, King County; Austin E. Griffiths, Judge.

Action by H. W. Beecher and another against Walter Thompson. From a judgment for defendant and a refusal to grant a new trial plaintiffs appeal. Reversed, and new trial granted.

Kerr McCord & Irey, of Seattle, for appellants.

E. L Rinehart, of Seattle, for respondent.

MACKINTOSH J.

The trial court, upon the following findings of fact, entered a judgment in favor of the respondent, foreclosing his lien:

'I. That plaintiffs, W. H. Beecher and Darrah Corbet, at all times herein mentioned were copartners as Beecher &amp Corbet, and Walter Thompson, defendant, a sole trader as Utility Garage.

'II. That, on or about October 3, 1919, one A. B. Cody was the owner of one Packard truck, dump body, factory No. 31477, model 4A; that on said date the said Cody gave a mortgage to plaintiffs on the said truck in the sum of $1,850; that during the month of December, 1919, plaintiffs began foreclosure proceedings on said mortgage, which proceedings they abandoned on or prior to April 20, 1920; that, on or about January 9, 1920, said truck was delivered to defendants for repair work, and conversion of the same into a trailer truck, defendant being an automobile repair and garage keeper, the delivery being made by said Cody. Of these facts plaintiffs were, when work was in progress, advised, and to which they at no time made objection. Defendant thereupon performed labor upon and furnished materials for the repair and alteration of said truck as aforesaid, of the value of $110.50, and stored said truck from the said date of its delivery to him to the present time, without interruption, said storage being of the value of $150; no part of either of said items has been paid; that on or about April 20, 1920, said Cody sold and assigned all interest in said truck to the plaintiffs by his legal representative, he having died prior thereto.

'III. That defendant has a lien on said truck for the charges aforesaid; that no part of said charges have been paid.'

The first question presented by this appeal is raised by the respondent, who claims that the appellants' reply constituted a departure from the complaint. The pleadings present the following situation: The complaint, which was one in replevin, alleges that the appellants were entitled to possession for the reason that they held the chattel mortgage upon the truck in question, and thereafter had received an assignment of the owner's interest therein. To the complaint the respondent answered denying that the appellants were entitled to possession, and set up in a cross-complaint his claim for a lien for services performed on the truck, and asked foreclosure thereof. To the new matter in this answer the appellants filed an amended reply, which, in substance, states that, although the respondent may have a right to a lien, yet that the appellants would have a right to foreclose their mortgage as against such a subsequent lien, and asked that the mortgage be so foreclosed. It is the respondent's position that the action, having been begun as one at law, the appellants are not entitled therein to the equitable remedy of foreclosure of their mortgage, and that such a departure cannot be sanctioned.

As we view the situation, the contention is without merit, for the reason that the respondent, by his cross-complaint, had asked the court of equity to foreclose his lien, and in answer thereto the appellants allege such rights as entitle them to equitable relief. If such pleadings were not allowed in this action it would only result in the prosecution of two suits instead of one, where the result would have to be the same as that obtained in the one action. We, therefore, hold against this position of the respondent.

There being no statement of facts in the case and no exceptions to the exclusion or admission of testimony, the only question is whether the findings of fact sustain the judgment. This brings up the question as to whether there has been a merger of the legal title and the interest of the mortgagee, so that the respondent is entitled to the foreclosure of his lien. The chattel mortgage given before the furnishing of labor and material upon the chattel is superior to the lien for such labor and materials. Rothweiler v. Winton Motor Car Co., 92 Wash. 215, 158 P. 737. Therefore the appellants' mortgage gave them a right superior to the respondent's lien. The question...