Davin v. Dowling

• Decision Date: 15 December 1927
• Docket Number: 20385.
• Parties: DAVIN v. DOWLING et al.
• Court: Washington Supreme Court

262 P. 123

146 Wash. 137

DAVIN v. DOWLING et al.

No. 20385.

Supreme Court of Washington, En Banc.

December 15, 1927

Appeal from Superior Court, Walla Walla County; Mills, Judge.

Action by Leonce A. P. Davin against P. B. Dowling and the Third National Bank of Walla Walla. Judgment of dismissal as to defendant last named, and plaintiff appeals. Reversed and remanded, with directions.

James P. Neal and Pedigo & Watson, all of Walla Walla, for appellant.

J. G Thomas and W. A. Toner, both of Walla Walla, for respondents.

MAIN J.

In form, this is an action for an accounting. In substance, it is one for conversion. The defendant P. B. Dowling did not resist the action, and judgment was taken against him. The other defendant, the Third National Bank of Walla Walla which will be referred to as the bank, contested, and the cause was tried to the court without a jury. Findings of fact and conclusions of law were entered, which denied a recovery as to this defendant. From the judgment of dismissal the plaintiff appeals.

The facts essential to be stated are these: On November 10, 1920 P. B. Dowling, being then the owner of a farm in Walla Walla county, mortgaged it to Leonce A. P. Davin, the appellant. Subsequently this mortgage was foreclosed, and, on March 24, 1923, Davin became the purchaser at the foreclosure sale for the sum of $24,600. During the year of redemption Dowling remained in possession of the land, and produced a crop consisting of wheat and alfalfa. On March 21, 1923, Dowling made a chattel mortgage to the bank covering crops to be produced upon the land during that year. This mortgage was for advancements then made and to be made from time to time. After the crops had been produced, the wheat thrashed, and the hay stacked, the same was sold without the consent or approval of Davin.

By reason of section 602, Rem. Comp. Stat., as construed in Mount v. Rockford State Bank, 134 Wash. 479, 236 P. 82, the lien of Davin for taxes and interest during the year of redemption was superior to that of the bank under its chattel mortgage, and the bank was charged with notice of this statutory lien.

The first question is whether the bank aided and assisted in the conversion of $430 worth of hay which was sold to one Frank Shannon. The law is that, where one aids and assists in a wrongful taking of chattels, he is liable for conversion the same as the active participants. In Starr v. Bankers' Union of the World, 81 Neb. 377, 116 N.W. 61, it was said:

'Where several parties unite in an act which constitutes a wrong to another under circumstances which fairly charge them with intending the consequences which follow, it is a very just and reasonable rule of the law which compels each to assume and bear the responsibility of misconduct of all. Cooley on Torts (2d Ed.) 153. Hence it is held that one who aids and assists in a wrongful taking of chattels is liable for the conversion, although he acted as agent for a third person [citing authorities].'

In Banks v. Windham, 7 Ala. App. 616, 62 So. 297, it was said:

'The appellants' contention that all of the defendant were not shown to have been participants in the wrong complained of or connected with it so as to make them liable is not well taken. The evidence sufficiently connects each and all of them with the transaction complained of, and shows, besides, without conflict and by the evidence of one of the defendants, that the defendants received and applied the proceeds from the sale of the furniture on their claim for rent.'

Inquiry then will be directed as to whether the bank aided and assisted in the conversion of the hay that was sold to Shannon. There is no evidence that it aided and assisted in the conversion of any other portion of the crop. As to this $430 worth of hay that went to Shannon, it appears that Shannon went to Dowling to purchase the hay, and was told that he could not sell it because the bank had a lien on it. Shannon went to the bank, and was told by an officer thereof to see Dowling, and that it would be all right with the bank. Shannon was unable to pay for the hay at the time, and arranged for credit through the bank. A note was drawn by the officer of the bank with whom he was dealing for the purchase price of the hay, and was left in the bank. The note was payable to Dowling. Shannon from time to time paid money to the bank on account of the note, and this was credited by the bank upon the indebtedness which Dowling owed it by virtue of the advancements which it had made under the chattel mortgage. From these facts it must be found that the bank aided and assisted in the conversion of the hay which was sold to Shannon. Without the consent and co-operation of the bank Shannon would have been unable to make the purchase. The bank's mortgage was good as between it and Dowling. For the sum of $430, therefore, the bank became liable as a party to the conversion.

The next question is whether the bank is liable for the balance of the money which it received as proceeds of the crop. This question is reduced to whether simply knowledge on the part of the bank at the time it received the money and applied it upon Dowling's debt was sufficient to make it guilty of the conversion of the money. Davin's lien for taxes and interest was upon the crop, and not upon the money. As to the crop other than that, that went to Shannon, as above stated the bank did not in any manner aid and assist in the conversion thereof. Money under certain circumstances may become the subject of conversion. But there can be no conversion of money, unless it was wrongfully received by the party charged with...