Commercial Credit Co. v. National Credit Co.

• Citation: 143 Wash. 253,255 P. 104
• Decision Date: 07 April 1927
• Docket Number: 20236.
• Parties: COMMERCIAL CREDIT CO. v. NATIONAL CREDIT CO.
• Court: Washington Supreme Court

255 P. 104

143 Wash. 253

COMMERCIAL CREDIT CO. v. NATIONAL CREDIT CO.

No. 20236.

Supreme Court of Washington

April 7, 1927

Department 2.

Appeal from Superior Court, King County; Edwards, Judge pro tem.

Action by the Commercial Credit Company against National Credit Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

John J. Kennett, of Seattle, for appellant.

Shorts & Denney and C. R. Hovey, all of Seattle, for respondent.

PARKER J.

The plaintiff, Commercial Credit Company, seeks recovery of a Nash roadster automobile, or, in the alternative, a money judgment for the value thereof, from the defendant, National Credit Company. A trial upon the merits in the superior court for King county sitting without a jury resulted in findings and judgment denying to the plaintiff any recovery, from which it has appealed to this court.

The controlling facts, as we read this record, may be summarized as follows: On May 1, 1925, the Wyman-Payson Motor Company of Mt. Vernon, Skagit county, entered into a conditional sale contract with G. J. Roberts of that county for sale to him of the car in question, the car being then delivered to him by the motor company; the agreed sale price being $1,792.80 upon which he made a cash payment of $550, agreeing to pay the balance in ten equal monthly installments. On May 2, 1925 the motor company, by indorsement on the back of the conditional sale contract, made an assignment to appellant Commercial Credit Company, reading as follows:

'For value received, the agreement (on the reverse side) and the note therein mentioned between G. J. Roberts and the undersigned, and the property therein described, and all the right, title and interest therein of the undersigned are hereby sold, assigned and transferred to Commercial Credit Company, San Francisco, Cal., its successors or assigns. The undersigned jointly and severally hereby guarantees full performance of said agreement in all its terms and the prompt payment of any and all sums provided therein together with collection expenses, costs and attorney's fees, and agrees to pay the attorney's fees and costs of enforcing this agreement. The undersigned jointly and severally hereby agrees that in the event of the noncompliance with any of the conditions of this agreement whether or not repossession has been made or undertaken, suit may be brought by the holder against any one or more or all of the parties hereto, whether or not suit has been commenced against the party or parties to the agreement and without waiving any rights to later repossess. The undersigned jointly and severally hereby agree that in the event of repossession, the entire balance outstanding under such agreement shall become immediately due and payable. The undersigned jointly and severally hereby waives any and all notice of nonpayment demand, presentment or protest, which may be required under said agreement or note mentioned in same, or in connection therewith, and agrees that any extensions which may be granted by the holder hereof to the parties to said agreement shall not in any manner release the undersigned.

'Dated this 2d day of May, 1925, at Mt. Verson, State of Wn. [Signed] Wyman Payson Motor Co., [Seal.] by E. H. Wyman.'

On May 4, 1925, the conditional sale contract and assignment was duly filed for record in the office of the auditor of Skagit county. On September 25, 1925, Roberts being in default in payments entitling the owner of the car to forfeit his rights under the conditional sale contract, and appellant, claiming to be the owner of the car by virtue of the assignment above quoted and entitled to exercise such right of forfeiture, caused its agent, Mr. Mourning, to seize and take the car from Roberts so evidencing its intent to forfeit and terminate all rights of Roberts to the car under the conditional sale contract. Appellant's agent then took the car to the motor company's garage and place of business at Mt. Vernon, leaving it there, as we think the evidence shows, only in storage, without any intent to part with any right thereto possessed by appellant under the conditional sale contract and the assignment thereof. It appears that when the automobile was taken by appellant's agent from Roberts, they had an understanding to the effect that Roberts might be able within a few days to redeem his rights under the conditional sale contract, and that he might do so by going to the motor company's place of business where it was agreed between them the car would be temporarily stored, and, upon paying to the motor company for appellant the unpaid installments upon the contract, retake the car and thereby have his rights under the conditional sale contract fully restored. The motor company was plainly advised of this understanding between appellant's agent and Roberts at the time the car was left in its charge by appellant's agent. Roberts, however, never exercised this right, though, as we shall presently see, appellant was led by the motor company to believe that Roberts did exercise this right. On September 29, 1925, the motor company, assuming ownership of the car, entered into another conditional sale contract with Roberts for the sale of it to him, then again delivering it to him; the agreed sale price being $1,762.75, Roberts being credited with $875 thereon, and agreeing to pay the balance in twelve equal monthly installments. This transaction between Roberts and the motor company did not become known to appellant until shortly before the commencement of this action. On September 30, 1925, appellant, being ignorant of the making of a new conditional sale contract with Roberts by the motor company, wrote to the motor company as follows:

'Seattle, Wash., September 30, 1925.

'Wyman Payson Motor Co., Mount Vernon, Washington--Gentlemen: Re G. J. Roberts, 1925 Nash Rds. Mtr. No. 207536. We have a report from our Mr. Mourning that the above listed car was repossessed and on your floor. For your information the past-due installments are represented by the July, August, and September 1st payments each in the amount of $124.28. We would appreciate your forwarding this amount and make arrangements to pay off the entire balance of $1,118.52 by the 15th of October.

'Your co-operation in regard to this will be very much appreciated by the writer.

'Very truly yours,

'[Signed] G. T. Harding.'

Mr. Harding, whose name is signed to this communication, was the credit manager of appellant at its Seattle office. A few days thereafter the motor company sent to appellant's Seattle office a check for $500, as appellant was led to believe by the communication accompanying the check, as payment from Roberts upon the conditional sale contract, which had been assigned by the motor company to appellant. Soon thereafter, on October 9, appellant again wrote from its Seattle office to the motor company acknowledging receipt of that payment as follows:

'Seattle, Wash., October 9, 1925.

'Wyman Payson Motor Co., Mt. Vernon, Wash. Gentlemen: Re G.

...