Diamond Ice & Storage Co. v. Klock Produce Co.

• Decision Date: 07 April 1920
• Docket Number: 15356.
• Citation: 110 Wash. 683,189 P. 257
• Court: Washington Supreme Court
• Parties: DIAMOND ICE & STORAGE CO. v. KLOCK PRODUCE CO.

189 P. 257

110 Wash. 683

DIAMOND ICE & STORAGE CO. v. KLOCK PRODUCE CO.

No. 15356.

Supreme Court of Washington

April 7, 1920

Department 2.

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

Action by the Diamond Ice & Storage Company against the Klock Produce Company. From judgment for plaintiff, defendant appeals. Affirmed.

Sam'l H. Steele, of Seattle, for appellant.

Jas. B Howe and A. J. Falknor, both of Seattle, for respondent.

FULLERTON J.

In this action the respondent, Diamond Ice & Storage Company sued to recover from the appellant, Klock Produce Company, the sum of $402.63, alleged to be due for the storage of certain cheese butter, and eggs. The case has heretofore been before us on a question of pleading, and will be found reported in 103 Wash 369, 174 P. 435. After the remand of the cause at the conclusion of that hearing, it was tried on its merits, the trial resulting in a judgment in favor of the respondent for the full amount claimed. This is an appeal from the judgment so entered.

As we said in the cited case, the complaint of the respondent is in the simplest form. It avers that between March 20, 1914, and April 23, 1915, the appellant caused to be stored with the respondent cheese, butter, and eggs, for which storage the respondent agreed to pay the sum of $1,344.14; that no part thereof has been paid except the sum of $941.51, leaving a balance due of $402.63. The answer admitted the storing with the respondent by the appellant of 'certain cheese, butter, and eggs,' but denied the other allegations of the complaint. Four separate affirmative defenses were also interposed. The first was a plea of payment, the second and third were to the effect that the claim had been adjudicated in prior actions between the same parties involving the same cause of action, and the fourth was a plea to the effect that it was not entitled to storage on the cheese because it refused to deliver the same when demanded and converted it to its own use, and that it was not entitled to storage on a part of the eggs because it so negligently stored them as to damage them for commercial use.

Noticing first the defenses of res judicata, it appears from the proof that on June 8, 1915, the produce company brought an action against the storage company to recover a certain quantity of cheese which it alleged that the storage company had received from it on storage, giving a negotiable warehouse receipt for the same, and which cheese it had refused to deliver to the produce company on demand made therefor; further alleging a conversion of the cheese; that its value was $872.69; that it had paid as storage thereon $77.20 for which it had received no benefit, and demanded judgment for the value of the cheese. Answering the complaint, the storage company denied the conversion of the cheese, and alleged affirmatively that the produce company had theretofore stored with it a large quantity of cheese, butter, and eggs, which it had withdrawn and on which it had not paid the storage charges; averring, further, that it claimed a lien upon this particular lot of cheese as security for such unpaid charges. No counterclaim or set-off was interposed. All that it claimed was that it had the right to retain the cheese under its lien, and the relief asked was that the produce company's section be dismissed. A reply was filed putting in issue the affirmative allegations in the answer, and on these issues a trial was entered upon before the court sitting without a jury. During the progress of the trial the storage company asked and was granted leave to amend its complaint, 'so as to ask for equitable relief, and that its lien be foreclosed and the cheese sold under it.' The court allowed the amendment, and at the conclusion of the evidence made findings in favor of the storage company, and adjudged that it had a lien upon the cheese for its storage charges, and directed that the lien be foreclosed and the cheese sold in satisfaction thereof. The produce company appealed to this court from the judgment entered, but, as it gave no supersedeas bond the judgment was not stayed, and during the pendency of the appeal the storage company caused the cheese to be sold under the judgment of foreclosure. On the appeal, this court reversed the judgment of the trial court, and directed that judgment be entered in its favor for the value of the cheese, which was fixed at the sum of $812.92. The case will be found reported in 90 Wash. 67, 155 P. 414. An examination of the opinion will show that the judgment was rested on the principle that this particular quantity of cheese could not be held for storage charges incurred in the storage of other commodities withdrawn without the payment of the charges due thereon, although the storage was by the same parties, and the rights of no third persons had intervened. This court in its opinion further held that, since the storage company had not set up as a counterclaim or set-off the storage charges claimed to be due, no allowance in the judgment directed could be made therefor, saying, with reference to the allegation introduced by the equitable amendment:

'We cannot now, over plaintiff's objection [that is, the objection of the produce company] allow, as a substitute for the lien to which [the storage company] was not entitled, a counterclaim or set-off never pleaded and never prayed for.'

On the return of the remittitur in that case judgment was entered for the sum directed, which judgment the storage company satisfied in full.

Arguing in support of the appellant's contention that the claim here in suit was litigated in the foregoing action, its learned counsel says:

'The identical question, on the identical debt, was in the cheese case pleaded put in issue, tried on the merits in the superior court, a personal judgment entered on which a general execution could have issued, followed by the additional order for a special execution. The special execution issued at respondent's request and the cheese sold and bought in by respondent for $250, five-eighths of the judgment. This claim was not only used as a defense in the cheese case, but as a counterclaim. If not, on what was the respondent's judgment based? The costs adjudged to be due respondent and more than one-half of the judgment was collected by respondent by execution on that judgment. The judgment after the enforcement thereof was reversed. The question is, Can the respondent

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