Bevan v. Muir

• Decision Date: 03 May 1909
• Citation: 53 Wash. 54,101 P. 485
• Parties: BEVAN v. MUIR et al.
• Court: Washington Supreme Court

101 P. 485

53 Wash. 54

BEVAN v. MUIR et al.

Supreme Court of Washington

May 3, 1909

Appeal from Superior Court, King County; A. W. Frater, Judge.

Action by Bessie Bartlett Bevan against B. L. Muir and others. Judgment for plaintiff, and defendants appeal. Modified and affirmed.

Will H Thompson, C. A. Riddle, and Trumbull & Trumbull, for appellants.

Shank & Smith, for respondent.

DUNBAR J.

This is an action for damages for breach of warranty on a sale of chattels and chattel interest in real estate evidenced by bill of sale. Frederick & Nelson, Incorporated, had conditionally sold and delivered certain household goods to one Cook upon an installment contract, reserving title to itself until the goods should be entirely paid for. One J. M Hale, by subsequent transfers, acquired the interest of Cook entered into possession, and subsequently died while so in possession, leaving the goods in the possession of one known as Mrs. H. G. Hale, supposed to be his widow. Afterwards she sold her right, title, and interest in the goods to third parties, and thereafter, through a number of transfers, the equity of the original vendee was vested in the appellants in this case. Afterwards appellants sold to the respondent all their interest in the goods, and delivered to her the possession thereof; they being in the possession of the property at the time it was sold. Afterwards the estate of J M. Hale, through one H. C. Gill, administrator thereof, brought an action against respondent, in which it was claimed that said goods were the property of the estate of J. M. Hale, deceased, and in that action the administrator recovered the goods, and the same were lost to respondent. While that action was pending and before trial, the respondent gave notice to the appellants of the pendency of said action, requiring the appellants to appear and defend the same, which notice was in writing. The appellants did not appear and defend said action, and it is claimed by the respondent and found by the trial court that said notice was sufficient to bind the appellants by that judgment.

The court, trying the case without a jury, made findings of fact, the first and second of which are substantially as stated above, and set forth in the findings the bill of sale, which was as follows: 'Know all men by these presents; that B. L. Muir and Clyde W. Coit and Charles A. Cushing, and Helen E. Cushing, the parties of the first part, for and in consideration of the sum of one dollar gold coin of the United States of America, to them in hand paid by Mrs. Bessie Bartlett Bevan, the party of the second part, the receipt whereof is hereby acknowledged, do by these presents grant, bargain, sell, and convey unto the said party of the second part, her executors, administrators, and assigns all our interest in the furniture, household goods, and fixtures in or used in connection with that certain sixty-room family hotel known as the 'Burlington,' located on Madison street, in the city of Seattle, King county, Washington, and being number 612 Madison street. Said property is taken subject to a lien of six thousand six hundred and twenty-seven dollars and eleven cents ($6,627.11) with interest from December 24th, 1906, in favor of Frederick & Nelson, Inc. And an indebtedness of one thousand dollars ($1,000) to Mrs. H. G. Hale which the purchasers assume and agree to pay. To have and to hold the same to the said party of the second part, her executors, administrators, and assigns, forever. And they do for their heirs, executors and administrators, covenant, and agree to and with the said party of the second part, executors, administrators, and assigns, to warrant and defend the sale of the said property, goods, and chattels hereby made unto the said party of the second part, her executors, administrators, and assigns, against all and every person and persons whomsoever lawfully claiming or to claim the same. [Duly signed and acknowledged.]' The bill of sale of the lease followed. The court found that the purchase price of the property was $10,500, of which $2,872.89 was cash paid by the plaintiff to the defendants on said January 7, 1907; that $6,627.11 was the balance of the purchase price of the furniture and furnishings owing to Frederick & Nelson, Incorporated, and the remaining $1,000 was a note given by a prior owner to the payee named as Mrs. H. G. Hale, being the two obligations specified in the bill of sale, and the payment of which the plaintiff therein assumed as a part of the purchase price; that thereafter, and prior to May 1, 1907, the plaintiff made payments on said indebtedness to Frederick & Nelson, Incorporated, in accordance with her said contract of assumption, aggregating $500, making a total of sums paid by her on the purchase price of $3,272.89, as aforesaid; that the legal title to the furniture and furnishings was on said January 1, 1907, and for some time thereafter, in Frederick & Nelson, Incorporated; that on June 4, 1907, one H. C. Gill, the duly appointed, qualified, and acting administrator of the estate of J. M. Hale, deceased, brought suit as set forth in the statement above; that under the institution of said suit on June 4, 1907, the said administrator obtained an order upon the plaintiff to show cause upon June 7, 1907, why the said furniture, furnishings, and leasehold should not be forthwith turned over to the said administrator or else a receiver be appointed; that summons and complaint and the said order to show cause in said action were served upon said plaintiff on June 5, 1907; and that thereupon, on June 6, 1907, the following notice to defend was personally served upon each of the three defendants herein; that is to say: 'Notice to Defend. To Clyde W. Coit, Charles A. Cushing, Helen E. Cushing, and B. L. Muir: You and each of you are hereby notified that H. C. Gill, as administrator of the estate of J. M. Hale, deceased, has filed his petition in said estate and obtained an order upon Mrs. Bessie Bartlett Bevan, otherwise known as Mrs. S.E. Bevan, in said petition claiming that the title to the property which you sold to Mrs. Bessie Bartlett Bevan under a contract of warranty on the 7th day of January, 1907, which property is known as the furniture, household goods, and fixtures in or used in connection with that certain sixty-room family hotel known as the Burlington, located on Madison street, in the city of Seattle, King county, Washington, and being numbered 612 Madison street, is the property of the estate of J. M. Hale, deceased, and that the title to said property has never passed out of said estate, and that the transfer of said property from some one representing herself as the widow of said J. M. Hale, deceased, is fraudulent, and that said person was not the widow of said J. M. Hale, deceased. The court has ordered Mrs. Bevan to appear before the Honorable R. B. Albertson tomorrow morning, June 7th, 1907, at 9:30 o'clock in the forenoon, to show cause, if any, why the administrator of said estate should not be let into possession of said property, or otherwise why a receiver should not be appointed to take charge of said hotel and property. Now, then, you are further notified that it is your duty to defend said action, and that the said Mrs. Bevan hereby demands that you do appear in said action and defend the same under your contract of warranty. Hereof take due notice. R. S. Jones, Attorney for Bessie Bartlett Bevan.' All of the defendants failed to defend the said action, and plaintiff defended the said action; in short, was dispossessed of the property, and by reason of said action the whole thereof was lost to plaintiff. The conclusions of law were to the effect that the property was sold by warranty of title except only as against the said two claims mentioned above; that the defendants were duly notified to defend the suit brought by the administrator of the estate of J. M. Hale; that they failed to do so; and that the plaintiff has been damaged by and is entitled to judgment against each of the defendants on their warranties of title in the sum of $3,372.89, with interest on $2,872.89 thereof from January 7, 1907, and on the remaining $500 thereof from May 1, 1907.

The appellants excepted to said findings of fact and conclusions of law and each of them, which exceptions were overruled, and judgment was entered, and appeal taken.

Several assignments of error are made; but it is conceded and stated by the appellants that the whole contest between the parties in this case is not...