Eatonville State Bank v. Marshall, 23628.

• Decision Date: 16 December 1932
• Docket Number: 23628.
• Citation: 17 P.2d 14,170 Wash. 503
• Parties: EATONVILLE STATE BANK v. MARSHALL.
• Court: Washington Supreme Court

17 P.2d 14

170 Wash. 503

EATONVILLE STATE BANK v. MARSHALL.

No. 23628.

Supreme Court of Washington

December 16, 1932

Department 2.

Appeal from Superior Court, King County; Chester A. Batchelor Judge.

Replevin by the Eatonville State Bank against W. Marshall. From judgment of dismissal, plaintiff appeals.

Reversed and remanded with directions.

Weter Roberts & Shefelman and Ernest M. Russell, all of Seattle for appellant.

James C. McKnight, of Seattle, for respondent.

HOLCOMB J.

This is a replevin action wherein appellant sues to recover an automobile and damages for its detention, or, in the alternative, for its full value.

The material facts are not in dispute and may be summarized as follows:

Appellant was the owner of a 1929 Ford automobile acquired from a Ford dealer in Eatonville in satisfaction of a debt. In order to realize on this car it turned it over to the Kirkland Motor Company, of Kirkland, a dealer in the products of the Ford Motor Company, giving the Kirkland Motor Company permission to exhibit and demonstrate the car to prospective purchasers, but no sale was to be made without appellant's approval. Thereafter, the Kirkland Motor Company permitted one of its salesmen to take the automobile to Seattle on two different occasions, when and where he exhibited it to respondent, a dealer in secondhand cars, who on the occasion of the second visit, about April 25, 1930, purchased the automobile, paying the salesman personally $400 and receiving a bill of sale, which this salesman signed as owner and seller, having represented himself as such in making the sale. No accounting was made of this sale to the Kirkland Motor Company, or to appellant, and the salesman was never thereafter seen nor heard from by any of the parties concerned. Following this disposition of the car, and Before the institution of this action, appellant made demand upon respondent to return the car, which was refused.

By way of affirmative defense, respondent in his answer alleged that at the time he paid for the automobile he had no notice of any kind that appellant had any claim whatever thereto, but believed that the salesman owned the car and had the right to sell it; that subsequent to this purchase respondent had been informed that appellant was the owner of the car, but had turned it over to the salesman for the purpose of having him sell it. Respondent further averred that, in any event, he was an innocent party and being more innocent than appellant asked that he be relieved from any liability.

The cause was tried to the court without a jury and resulted in a judgment of dismissal, from which has come this appeal.

We commence our consideration of this case with the basis doctrine of caveat emptor, as stated in 24 R. C. L. 373, § 662: 'It is a general rule as regards personal property that title, like a stream, cannot rise higher than its source; and therefore it is a general principle that no one can transfer a better title than he has, unless some principle of estoppel comes into operation against the person claiming under what would otherwise be the better title * * *.'

This same principle is announced in State Bank of Black Diamond v. Johnson, 104 Wash. 550, 177 P. 340, 343, 3 A. L. R. 235, from which we quote: 'If the vendor has no title, the vendee acquires none, unless the one having title has by act or neglect estopped himself from disputing the vendee's claim of title so acquired.'

The principle of estoppel, upon which the lower court decided this case and which is urged by respondent, is the doctrine of comparative negligence, which is that where one of two innocent parties must suffer by the act of a third, the one whose conduct made the loss possible must be the sufferer.

Such is the holding of this court in numerous cases, including Linn v. Reid, 114 Wash. 609, 196 P. 13; General Motors Acceptance Corporation v. Arthaud Land Co., 118 Wash. 593, 204 P. 194; Long v. McAvoy, 133 Wash. 472, 233 P. 930, 236 P. 806, 44 A. L. R. 483; Burtt v. Schoening, 138 Wash. 187, 244 P. 381; Doucette v. Old National Bank & Union Trust Co., 161 Wash. 159, 296 P. 570; Northwestern Finance Co. v. Russell, 161 Wash. 389, 297 P. 186; Grays Harbor Finance Co. v. Sutcliff, 165 Wash. 586, 5 P.2d 1002; Kiley v. Bugge, 165 Wash. 677, 5 P.2d 1038; Sims v. United States National Bank, 166 Wash. 119, 6 P.2d 601.

It is stated in Ewart on Estoppel, p. 298, that cases in which possession may be taken as indicative of ownership usually turn upon (1) the character of the chattel; or (2) the character of the place where the chattel is held; or (3) the customary...