Braack v. Bailey, 30613.
| Decision Date | 09 December 1948 |
| Docket Number | 30613. |
| Citation | 32 Wn.2d 60,200 P.2d 525 |
| Court | Washington Supreme Court |
| Parties | BRAACK et ux. v. BAILEY. |
Department 2
Action by Bert Braack and another against Clara Bode Bailey for conversion of personal property. Judgment for defendant, and plaintiffs appeal.
Affirmed.
Appeal from Superior Court, Pacific County; J. M. Phillips, Judge.
Fred M Bond, of South Bend, for appellants.
A. M Abel and Stanley J. Krause, both of Aberdeen, for respondent.
Action was instituted by plaintiffs for the purpose of recovering damages occasioned by the conversion or personal property. The cause, tried to the court sitting with a jury, resulted in a verdict favorable to the defendant. Plaintiffs' motion for a new trial was denied. Thereafter, plaintiffs appealed from the judgment based upon the verdict.
We summarize the evidence as follows: Appellants were copartners engaged in the business of felling timber and transporting it to market. The property involved in this action was a caterpillar and a yarder used in the logging operations. As shown by defendant's exhibit '2', appellants on June 25, 1946, purchased the property from respondent by conditional sales contract. The sale price of the caterpillar was six thousand dollars; that of the yarder was thirty-five hundred dollars. Five hundred dollars was paid at the time the contract was signed. The balance was to be paid at the rate of five hundred dollars each month. Appellants did not make any of the monthly payments upon the contract. April 21 1947, respondent notified the appellants by mail that they had not made any of the deferred payments provided for in the contract, and that unless she received payment in thirty days she would repossess the personal property covered by the agreement. June 5, 1947, she made oral demand for the return of the yarder and the caterpillar. June 9, 1947, Roy Cooper, as agent for respondent, went to the place where appellants were operating to take possession of the equipment described in the contract. On the way he met appellants and was told by them to take the equipment. One witness testified that appellants stated that the property 'was up there and ready to go.' Another testified that appellants said, 'go ahead and take it.' Mr. Cooper, then, on behalf of respondent, took possession of the caterpillar and yarder.
Appellants' testimony was to the effect that respondent changed the sales contract after it was signed by adding thereto the description of the yarder. They never consented to any change in the contract. Respondent asked for and accepted the chattel mortgage on the yarder, and placed it on record July 5, 1946. Bert Braack was not present when the claimed consent was given to Cooper to take the property, and Cecil Braack did not consent to the taking of the property by respondent's agent, Cooper.
The court instructed the jury upon the following issues:
1. Was the yarder sold to appellants by contract, or was the sale financed by a chattel mortgage?
2. Did respondent waive the forfeiture clause contained in the contract?
3. Was reasonable notice given by respondent to appellants, demanding compliance with the terms of the contract or the return of the property?
4. Did appellants voluntarily surrender possession of the yarder and the caterpillar?
The verdict of the jury resolved these issues in favor of respondent. No exceptions were taken to the instructions given by the trial court. They therefore became the law of the case and are binding upon the parties to this action. Cartledge v. Allen, 25 Wash.2d 300, 170 P.2d 660.
Appellants in their brief argue the various points presented under the claim that the court refused to grant a new trial. The first contention is that one partner does not have the power to transfer all of the partnership property without the knowledge or consent of the other partner. It is not necessary to discuss this proposition for the reason that the evidence does not indicate that the caterpillar and yarder constituted all of the partnership property. Another reason for declining a discussion of this question is that there was evidence submitted to the jury to the effect that both partners told Mr. Cooper to take possession of the...
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