Chezum v. Parker

• Decision Date: 26 July 1898
• Citation: 54 P. 22,19 Wash. 645
• Parties: CHEZUM v. PARKER.
• Court: Washington Supreme Court

54 P. 22

19 Wash. 645

CHEZUM v. PARKER.

Supreme Court of Washington

July 26, 1898

Appeal from superior court, Pierce county; Thomas Carroll, Judge.

Action by F. O. Chezum against Samuel Parker. Judgment for plaintiff. Defendant appeals. Affirmed.

Eric Edw. Rosling and T. L. Stiles, for appellant.

John Arthur, Ira A. Town, and G. L. McKay, for respondent.

GORDON J.

Respondent brought this action to recover the value of certain furniture and law books which he alleges were taken from his possession and converted by the defendant. The answer denied that respondent was the owner of the goods, and affirmatively alleged that one Likens was the owner, at the time when possession of them was taken by the appellant, as sheriff of Pierce county, under and by virtue of a warrant of attachment issued in an action then pending in the superior court of that county, in which action P. V. Cæsar, agent, was plaintiff, and said Likens was defendant. The answer further alleged that the attempted sale and transfer of the property from Likens to the respondent were made in fraud of Likens' creditors. The jury found for the plaintiff, and from the judgment entered upon their verdict the present appeal was taken.

There are a great many assignments of error, but the main questions to be determined may be considered under a few heads. At the trial, plaintiff relied upon a bill of sale which was executed by Likens and acknowledged on the 5th day of October, 1896. In his own behalf he testified that at that time Likens was indebted to him on certain notes in an amount aggregating $1,975, a portion of which indebtedness was of long standing; that Likens was financially embarrassed, and respondent had been pressing him for a settlement; that it was finally agreed between them that Likens should transfer and sell to plaintiff the property in question, in consideration of which plaintiff should release and cancel the indebtedness. At the time of reaching that agreement the bill of sale was drawn up, signed, and witnessed, but not dated or acknowledged; Likens retaining it for the purpose of having it acknowledged, and also stating to plaintiff that if anything happened to him, the plaintiff would find the bill of sale in a certain drawer in his desk. It also appears that Likens was accustomed to leave letters and papers for appellant in this same drawer, from where plaintiff would get them. Testimony was given which tended to show that Likens was at that time anticipating the commencement of legal proceedings against him, of a criminal nature also, that he absconded on or about the 6th or 7th of October, 1896. On the morning of October 8th, the office having been locked for a couple of days, plaintiff secured a key from the janitor of the building, entered the office, and in the drawer referred to found the bill of sale; also, the following letter, which was received in evidence "Tacoma, Wash., Oct. 7, '96. F. O. Chezum, city-Dear Sir: Referring to our conversation about my indebtedness to you, and the (the) settlement of our business affairs, I have concluded to carry out the arrangement we agreed upon; and I have left for you a bill of sale of all my office furniture library, and all the property in my office. The paper is in the drawer of my desk with the keys is hereby delivered to you. Very resp., W. W. Likens." Thereupon respondent took possession of the office, scratched Likens' name from the door, placed his own name thereon, and took steps towards leasing the rooms. On the morning of the 9th, defendant took possession under the warrant of attachment. It is contended that there was no sufficient proof of the delivery of the bill of sale, but we think the plaintiff's own testimony, if believed by the jury, was sufficient upon that point. Plaintiff was in actual possession prior to the levy of the attachment, and it is not necessary to consider or determine what the effect would have been had the attachment been levied prior to the actual receipt of the bill of sale, and possession by the plaintiff.

It is also contended that there was no sufficient evidence of a consideration for the sale. The testimony tended to show that the notes held by the plaintiff had been surrendered to John Arthur, and there was also evidence from which the jury were warranted in finding that Arthur was the attorney for Likens with authority to represent him. In the bill of sale it is recited that the property was sold subject to a mortgage of $320. In addition to what has already been stated concerning the pleadings, the answer alleged that on the 23d day of November, 1896, Wilcox, the mortgagee, delivered to the defendant, as sheriff, the mortgage and note thereby secured, together with notices of sale, and required defendant to foreclose and sell the property according to law; that thereupon the defendant, as sheriff, issued and posted the notices, and thereafter sold the mortgaged property, and, after satisfying the mortgage and paying the costs and expenses of foreclosure, turned a surplus amounting to $128.50 over to the court, subject to the attachment of Cæsar, agent, etc. At the trial the defendant offered in evidence the note, mortgage, notices of sale, and other papers pertaining thereto, which were excluded upon respondent's objection;...