Edison Oyster Co., Inc. v. Pioneer Oyster Co.

• Decision Date: 21 March 1945
• Docket Number: 29455.
• Citation: 157 P.2d 302,22 Wn.2d 616
• Parties: EDISON OYSTER CO., Inc., v. PIONEER OYSTER CO. et al.
• Court: Washington Supreme Court

157 P.2d 302

22 Wn.2d 616

EDISON OYSTER CO., Inc., v. PIONEER OYSTER CO. et al.

No. 29455.

Supreme Court of Washington

March 21, 1945

Department 1.

Action by Edison Oyster Company, Inc., against Pioneer Oyster Company and others for a declaratory judgment determining the rights of all the parties to certain oysters, wherein defendant Pioneer Oyster Company cross-complained, defendants Alfred H. Lundin, Julia D. Lundin, Rupert H. Bailey, and Lucile Bailey filed a separate answer supporting the position of defendant Pioneer Oyster Company and defendants Ben F Nauman, Mary A. Nauman, A. E. Shulz and Anna Shulz, admitted the allegations of the complaint and supported plaintiff. From a judgment for plaintiff upon a motion challenging sufficiency of evidence to support any claim of defendant Pioneer Oyster Company, defendants Pioneer Oyster Company Lundin, and Bailey appeal.

Affirmed.

Appeal from Superior Court, Skagit County; Ralph C. Bell, judge.

Henderson & McBee, of Mount Vernon, and Lundin & Barto, of Seattle, for appellants.

Ogden &amp Ogden, Kumm & Hatch, Groff & Kelleran, and William A. Herren, all of Seattle, for respondents.

JEFFERS Justice.

This is an action for a declaratory judgment, instituted by the Edison Oyster Co., Inc., a corporation against the Pioneer Oyster Company, a corporation; Alfred H. Lundin and wife; Ben F. Nauman and wife; A. E. Shulz; Anna Shulz; and Rupert H. Bailey and wife. It was started in 1943, for the purpose of requiring the defendants to appear and assert what if any, right, title, or interest they claim in and to certain oysters which plaintiff was removing from certain tide lands in Padilla Bay; and to obtain a decree determining, establishing and declaring the rights of the parties to this action in and to the oysters.

Plaintiff bases its claim of title to the oysters in question, and its right to remove them, upon a contract with defendants Nauman, under date of May 11, 1943, and subsequent modifications thereof granting it the right to remove the oysters from the tide lands therein described, which tide lands will hereinafter be referred to as the 'Nauman' tracts.

It is alleged in the complaint that plaintiff, Edison Oyster Company, under its contract with defendants Nauman, had removed several thousand bushels of the oysters when it was notified that defendant Pioneer Oyster Company claimed title to the oysters on the tracts covered by plaintiff's contract, and would hold plaintiff liable for the value of any oysters removed; that defendants Nauman are insisting on plaintiff's performance of the contract and that they are entitled to such performance and payments due thereunder.

Defendant Pioneer Oyster Company appeared separately, by answer and cross-complaint, basing its claim of ownership to the oysters here in question on its allegations that in April, 1934, the Padilla-Point Oyster Company under a lease agreement, planted 26,492 boxes of oyster seed upon tracts numbered 202 to 257, inclusive, plat of Padilla bay, Skagit county, Washington, owned by Alfred H. Lundin and wife; that due to the action of the wind and waves, on October 15, 1934, a large part of the oyster seed drifted to the Nauman tracts; that the oysters which plaintiff is claiming, and seeking to remove, are oysters resulting from the seed planted by Padilla on the Lundin tracts and belong to Pioneer Oyster Company, which has acquired all the assets and rights of the Padilla-Point Oyster Company. It is further alleged by Pioneer Oyster Company that it informed plaintiff by letter dated November 12, 1943, that the oysters which plaintiff was removing were the property of Pioneer Oyster Company.

Defendant Pioneer Oyster Company has asked that it be adjudged to be the owner of the oysters in question.

Defendants Lundin and Bailey filed a separate answer. These defendants alleged that Padilla-Point Oyster Company planted 26,492 boxes of seed oysters on tracts 202 to 257, inclusive, in April, 1934, and that the oysters belonged to Padilla, as legal owner for the benefit of the landowners leasing their land to Padilla; that the Padilla-Point Oyster Company was dissolved by order of court and thereupon the Pioneer Oyster Company became the legal owner of said oysters; that the beneficial interest of defendants Lundin to the oysters is in the proportion of 1,000 to 75,682 cases; that defendants Bailey, as individuals, have no right, title, or interest in and to the oysters, their only interest being as a stockholder in Pioneer Oyster Company.

Defendants Nauman and A. E. Shulz appeared and admitted the allegations of the complaint. They affirmatively alleged that defendants Pioneer Oyster Company, Lundin, and Bailey have no right, title, or interest in the oysters which Nauman contracted to sell to plaintiff. They also alleged that if defendants Pioneer Oyster Company, Lundin, and Bailey ever had any claim in or to these oysters, such claim is barred by the statute of limitations.

Plaintiff, by reply, denied the affirmative allegations contained in the answer of defendants Pioneer Oyster Company, Lundin et al., and alleged that if Pioneer Oyster Company ever had cause of action as alleged in its cross-complaint, such claim had not been asserted within the time limited by law and was therefore barred by the statute of limitations.

Defendant Pioneer Oyster Company, by reply, denied the affirmative matter set up in the answer of defendants Nauman, et al.

No objection was made to the form of the proceedings, but all parties were interested in having a determination of their rights, if any, in and to these oysters.

Defendant Pioneer Oyster Company voluntarily assumed the burden of proof and proceeded to introduce its evidence. At the close of this evidence Nauman and wife, A. E. Shulz and Anna Shulz interposed the following motion:

'If your Honor please, at this point, on behalf of Mr. and Mrs. Nauman and on behalf of Miss Shulz and her mother, we now move that the cause of action contained in the cross- complaint of the defendant, Pioneer Oyster Company, be dismissed * * *.'

The above motion was, in fact, a challenge to the sufficiency of the evidence to support any claim of Pioneer Oyster Company to these oysters, and was so considered by the trial court, as the reason assigned to support the above motion was that the statute of limitations had run against any claim Pioneer may have had in and to these oysters.

Plaintiff, Edison Oyster Co., Inc., joined in the above motion for the same reason advanced by the Naumans and the Shulzes.

In addition, counsel for Edison Oyster Co., Inc., amended the motion, as follows:

'Mr. Kumm: I would like to amend the motion to be a motion for judgment permitting us to proceed with our contract without interference. I did not understand whether your Honor said it would be so deemed.

'The Court: I know no reason why judgment in this cause should not take the form suggested, with the findings of fact along the lines I suggested * * *.'

There can be no question as to how the trial court considered the above motion and the amendment thereto, since preceding the actual findings of fact is the following statement:

'* * * the defendant Pioneer Oyster Company having assumed the burden of proof of affirmatively establishing its rights and claims as pleaded in its cause of action as contained in its answer and cross-complaint herein, and having offered evidence in support thereof, and having rested its case, the defendants Ben F. Nauman and wife and A. E. Shulz and Anna Shulz having thereupon challenged the sufficiency of the evidence to support the claim of the Pioneer Oyster Company to the oysters involved herein, the plaintiff having joined in said motion and having moved for judgment establishing its right to proceed with the performance of its contract with the defendant Ben F. Nauman, as set forth in plaintiff's complaint herein, * * * now makes the following: Findings of Fact.'

We have set out the above record for the reason that appellants in their brief, on page 6, state:

'At the conclusion of the introduction of the evidence by the Pioneer Oyster Company, a motion for non-suit was made by respondents, Nauman and Edison Oyster Company. The motion was granted, the court entered findings of fact, conclusions of law, and a decree * * *.' The first assignment of error is that the court erred in granting the motion for non-suit. The second assignment is that the court erred in entering any findings of fact.

It is apparent from the above record that the trial court did not consider the motion a motion for non-suit, but a motion to challenge the sufficency of the evidence to support any claim of Pioneer to the oysters.

Under this record we are of the opinion that the trial court was justified in making and entering findings of fact.

The findings of fact made by the trial court are amply supported by the evidence, and in our statement of the facts we have followed and accepted the court's findings. In one or two instances we have given additional facts not specifically found by the trial court but in regard to which there is no dispute.

Defendants Lundin and wife have been, and now are, the owners of the legal title to certain tide lands in Skagit county Washington, described as tracts 202 to 257, both inclusive, plat of Padilla bay, which property will be referred to as the 'Lundin' tracts. In April, 1934, Padilla-Point Oyster Company, a corporation, hereinafter referred to as 'Padilla,' planted upon the Lundin tracts approximately 26,492 boxes of oyster seed, the legal title to which, and the oysters resulting therefrom, being vested exclusively in Padilla, under a certain lease agreement entered into on March 1, 1932, between Lundin and wife and...