Dennis v. Montesano Nat. Bank

• Decision Date: 22 April 1905
• Parties: DENNIS v. MONTESANO NAT. BANK.
• Court: Washington Supreme Court

80 P. 764

38 Wash. 435

DENNIS v. MONTESANO NAT. BANK.

Supreme Court of Washington

April 22, 1905

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by Joseph A. Dennis against the Montesano National Bank. From an order granting a new trial, plaintiff appeals. Affirmed.

W. H. Abel, for appellant.

B. G Cheney and J. B. Bridges, for respondent.

HADLEY J.

This is an appeal from an order granting a new trial. The complaint avers that the plaintiff was on May 6, 1903, the owner and in the immediate possession of certain shingles stored in the dry kiln and shed of his mill; that on said date the defendant wrongfully carried away and converted the shingles to its own use, to the damage of the plaintiff in the sum of $3,000, for which amount judgment is demanded. The answer denies the averments of the complaint, and affirmatively alleges that on the 17th day of April, 1902, the plaintiff was the owner of a certain shingle mill, and that on said date he and the defendant entered into a written contract, of which the following is a copy:

'This Agreement, Made and entered into this 17th day of April 1902, by and between Joseph A. Dennis of Montesano, Chehalis county, State of Washington, the party of the first part, and The Montesano National Bank of the same place the party of the second part, Witnesseth: That for and in consideration of the sum of $2849.12 to him in hand paid by the party of the second part, the receipt of which is hereby acknowledged, and of future advances to be made by said party of the second part to the said party of the first part, and of the mutual covenants and agreements hereinafter specified, the said party of the first part hereby agrees with the said party of the second part as follows, to wit:

'The party of the first part agrees to superintend the operation of the shingle mill situate on lot 4, section 7, township 17, west of the Willamette Meridian, Chehalis County, Washington, known as the Dennis Shingle Mill, as continually as possible during the year 1902. The party of the first part further agrees to use all moneys advanced and to be advanced for the purpose of supplying said mill with timber and in the payment of the expenses of the operation of the same. All of said timber and expenses to be paid by check drawn on the said party of the second part. That the said party of the first part shall keep all shingles so manufactured by said mill insured in an amount as near their full value as possible, the policies made payable in the event of loss to the said party of the second part. It is hereby expressly understood and agreed that all of the timber purchased as aforesaid and all of the shingles so manufactured therefrom shall be and remain the absolute property of the said party of the second part, until all moneys advanced by the said party of the second part to the party of the first part shall have been fully paid and this agreement cancelled, and during the life of this agreement the said party of the second part shall have absolute control of the same, and that in purchasing said timber and in superintending the manufacture of said shingles the said party of the first part shall at all times act under the supervision of the said party of the second part. The said party of the first part further agrees to pay and discharge all liens or claims against said timber and shingles so that at all times the same shall be free and clear of any and all claims of any third person or persons whatsoever. The said party of the second part agrees to furnish sufficient money in addition to the amount hereinbefore specified to purchase sufficient material to keep said mill in as continuous operation as possible and to pay all the expenses of the operation of said mill, as soon as the same become due. It is further agreed that a settlement shall be had between the parties hereto on or before the 1st day of January, 1903, and this agreement cancelled or continued in force at the option of the said party of the second part. It is further agreed that all moneys received for the sale of any of said shingles shall be paid to the party of the second part, and applied to the payment of the indebtedness secured hereby.'

It is further alleged that the plaintiff began the operation of the shingle mill under said contract, and continued to so operate until January 1, 1903, when a settlement was had, and plaintiff was found to be indebted to defendant in a large amount, and...