Burke v. Wilson

Decision Date30 June 1919
Docket Number15350.
Citation181 P. 904,107 Wash. 454
CourtWashington Supreme Court
PartiesBURKE v. WILSON et al.

Department 2.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by M. Burke against E. H. Wilson and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Frank E. Hammond, of Seattle, for appellants.

Philip Tworoger, of Seattle, for respondent.

PARKER J.

The plaintiff, Burke, as assignee of William Bojezk, commenced this action in the superior court for King county, seeking recovery of possession of a team of horses, a spring wagon and a set of double harness, which he claims to be entitled to the possession of as against the defendants, the Wilsons and Chopek, who he claims wrongfully acquired possession thereof from Bojezk, and which possession is wrongfully withheld by them; also seeking in the alternative a money judgment against the defendants for the value of the property. Trial upon the merits in the superior court sitting without a jury resulted in findings and judgment in favor of the plaintiff and against the defendants, from which they have appealed to this court.

There is no statement of facts or bill of exceptions in the record before us. The facts may be summarized from the trial court's findings as follows: On and prior to July 11 1918, Bojezk and Chopek were partners in business, and as such were the owners of the property in question. On that day they mutually dissolved their partnership, and in the settlement of their partnership affairs made an agreement touching the disposition of this property, as evidenced by two written instruments then executed and to which both were parties. One of the instruments was a plain bill of sale executed by Chopek, purporting upon its face to be an absolute conveyance of this property to Bojezk. The other instrument, executed at the same time and as a part of the same transaction, in so far as we need notice its terms reads as follows:

'This agreement made this 11th day of July, 1918, by and between William Bojezk and William Chopek, witnesseth: Said William Chopek has this day executed and delivered to said William Bojezk a bill of sale on the following discribed property, to wit: [description]. It is hereby agreed by and between the parties hereto that the said William Bojezk will at his convenience sell the property and out of the proceeds of the said sale of property after deducting the sum of $273 and any charges or expenses that he may be put to by reason of said sale, pay to William Chopek any sum that he may realize over the sum of $273 and such additional charges and expenses that he may be put to by reason of having custody of the said property.'

Immediately after the execution of these instruments, they went to the stable where the property was being kept, when it was there delivered into the possession of Bojezk, who then paid the charges existing against it for feed and care. On the following day, July 12, 1918, chopek, without the knowledge or consent of Bojezk, removed the property from where it had been kept and was left by Bojezk, taking it to and placing it in a stable kept by Wilson. Soon thereafter Bojezk, through his attorney, made a demand upon Wilson for the possession of the property, which demand Wilson refused to comply with. At that time the property 'was in the actual possession of the said Wilson, and in the constructive possession of the said Chopek.' Thereafter, on July 16, 1918, Bojezk executed and delivered to Burke an instrument in writing as follows:

'In consideration of one dollar and other valuable considerations, I hereby assign to M. Burke, all my right, title and interest, in and to right of action I have against E. H. Wilson and Jane Doe Wilson, his wife, and Wm. Chopek, growing out of their conversion of certain personal property belonging to me, to wit: [description]. And I hereby authorize the said M. Burke to bring action to recover either the said property, or the value thereof.'

This assignment was executed merely for the purpose of permitting Burke to bring this action: Bojezk retaining title to the rights assigned, as between him and Burke. The court found the value of the property to be $350. No demand was ever made in behalf of Bojezk or Burke upon either Wilson or Chopek for possession of the property, other than the demand made by Bojezk upon Wilson above noticed. The property remained in the possession of Wilson and Chopek, Burke not having sought to acquire possession thereof by writ of replevin pending the action. The judgment is in favor of Burke for the possession of the property, or upon failure of the Wilsons and Chopek to deliver the same to Burke, for a money judgment against them in favor of Burke for the sum of $273, that being, as the trial court found, the value of Burke's interest in the property, as assignee of Bojezk.

The principal contention here made in behalf of appellants, the Wilsons and Chopek, seems to be that an action of this nature, that is, an action to recover the property, or in the alternative, its value, cannot be maintained by Burke upon this assignment, since it was made solely for the purpose of enabling Burke to maintain the action, and not, as between Bojezk and Burke, to divest Bojezk of his interest in the property and the proceeds of its sale when made in pursuance of his contract with Chopek. Counsel invokes section 179, Rem. Code, providing that:

'Every action shall be prosecuted in the name of the real party in interest, except as is otherwise provided by law'

--and argue that section 191, Rem. Code, does not provide otherwise with reference to an action of this nature by an assignee who has become such for the sole purpose of suing upon the chose...

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3 cases
  • Newell Brothers v. Zuar Hanson
    • United States
    • Vermont Supreme Court
    • January 4, 1924
    ... ... Quarry Co. v. Brice, 250 U.S. 229, 63 L.Ed ... 951, 39 S.Ct. 458; Beaver Tr. Co. v ... Morgan, 259 Pa. 567, 103 A. 367; Burke v ... Wilson, 107 Wash. 454, 181 P. 904; Smith v ... Wagner, 106 Misc. 170, 174 N.Y.S. 205. It does not ... avail the defendant that an action ... ...
  • Newell Bros. v. Hanson
    • United States
    • Vermont Supreme Court
    • January 4, 1924
    ...Quarry Co. v. Brice, 250 U. S. 229, 39 Sup. Ct. 458, 63 L. Ed. 951; Beaver Tr. Co. v. Morgan, 259 Pa. 567, 103 Atl. 367: Burke v. Wilson, 107 Wash. 454, 181 P. 904; Smith v. Wagner, 106 Misc. Rep. 170, 174 N. Y. Supp. 205. It does not avail the defendant that an action at law to enforce the......
  • Finch v. Enke
    • United States
    • South Dakota Supreme Court
    • January 5, 1929
    ...last cited was followed in Midwest Nat. Bank v. Niles & W. S. Bank, 190 Iowa 752, 180 N.W. 880. The Washington court, in Burke v. Wilson, 107 Wash. 454, 181 P. 904, later said that it has become settled law that, “‘In the absence of any provision to the contrary, the unqualified assignment ......

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