Bowles Co. v. Fraser

• Decision Date: 14 July 1910
• Citation: 109 P. 812,59 Wash. 336
• Court: Washington Supreme Court
• Parties: BOWLES CO. v. FRASER et al.

109 P. 812

59 Wash. 336

BOWLES CO. v. FRASER et al.

Supreme Court of Washington

July 14, 1910

Department 1. Appeal from Superior Court, King County; John F. Main Judge.

Action by the Bowles Company against J. A. Fraser and Charles Clark and wife. From a judgment for plaintiff, defendants Clark and wife appeal. Reversed and remanded, with direction.

Chauncey L. Baxter and John R. Wilson, for appellants.

McClure & McClure, for respondent.

FULLERTON J.

The appellants Clark are the owners of certain real property in the city of Seattle on which they constructed a dwelling. At the time the house was in process of construction, defendant Fraser was the manager of the Enterprise Plumbing Company and as such manager contracted with the Clarks to furnish the necessary materials and to do certain plumbing required by the plans of the house. After he had partially performed his contract, he informed the appellants that the balance of the material to complete the work would cost between $65 and $70, and that he did not have such materials and could not obtain them on credit, but that they could be procured from the respondent. The appellant Charles Clark thereupon made out a check for the sum of $70, payable to the respondent, and delivered it to Fraser with the request that he get the necessary materials from the respondent and deliver the check to it in payment. Fraser took the check and delivered it to the respondent as directed, but requested it at the time he did so to credit $36.71 thereof to a certain account which he had theretofore purchased for the Clark dwelling and for which he had not paid, to credit $18.29 thereof to his general account, and to pay him the balance of $15 in cash. The respondent cashed the check and made disposition of the money as thus requested. Later on Fraser obtained from the respondent plumbing supplies of the value of $68.74, which were delivered at the house of the appellants and actually used by Fraser in completing his plumbing contract with them. During all this time the appellants and the respondent were strangers, having had no direct dealings with each other of any kind whatsoever. Within the statutory time for filing a materialman's lien, the respondent, claiming that the materials last delivered had not been paid for, filed a lien on the appellants' dwelling house, and thereafter brought the present action to foreclose the same. On the trial the trial judge entered a decree foreclosing the lien. This appeal was taken therefrom.

The record does not disclose the ground upon which the trial judge rested his decision, and we are not otherwise advised as to the reasons he deemed controlling. The respondent's learned counsel, however, argue upon the theory that the check was a negotiable instrument coming into the respondent's hands for value and in due course, and that it, as a bona fide holder thereof, was in no manner liable to account to the appellants therefor. On this question they say in the brief: 'The check came into plaintiff's hands in due course of business for a valuable consideration and without notice of any irregularity whatever. It was deposited in the bank, the amount thereof collected, and passed to plaintiff's credit. Let us suppose that the additional supplies for which lien is claimed had not been furnished. In that event, would Mr Clark be in a position to sue plaintiff and recover $33.29 the amount now in dispute? Manifestly he could recover nothing, for the check having come into plaintiff's hands for a valuable consideration, without notice of any irregularity whatsoever, became plaintiff's property, and plaintiff's rights thereunder could have been enforced by suit, if necessary. * * * This check was not received by plaintiff as a loan; it was not received by plaintiff to be held for Mr. Clark's benefit. Plaintiff is not in the banking business and is entitled to have its wishes consulted before receiving money from its customers for goods to be purchased later and for which...