Eisenberg v. Nichols

• Decision Date: 12 January 1900
• Citation: 22 Wash. 70,60 P. 124
• Parties: EISENBERG v. NICHOLS et al.
• Court: Washington Supreme Court

60 P. 124

22 Wash. 70

EISENBERG v. NICHOLS et al.

Supreme Court of Washington

January 12, 1900

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Replevin by A. Elsenberg against Ben C. Nichols and another to recover certain personal property or its value. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Gordon C.J., dissenting.

Samuel R. Stern, for appellant.

R. E Porterfield and T. D. Rockwell, for respondents.

DUNBAR J.

This is an action in replevin to recover certain jewelry bought of the appellant by the respondent Nichols, and afterwards sold by him to the respondent Rogers. Upon the close of appellant's testimony the respondents challenged the sufficiency of the same on a motion to dismiss, and the motion was granted by the court. Judgment was entered for costs, and from such judgment this appeal is taken.

It is the contention of the appellant that the circumstances under which these goods were purchased show that it was a bailment instead of a conditional sale, and that the title never passed from the appellant. This contention is based upon the custom which is alleged to exist among jewelers where a jeweler procures from a jobbing or wholesale house lines of goods on selection or memorandum, and that these two words 'selection' and 'memorandum' have a distinct trade significance, and their meaning as understood in the trade, and, it is alleged in this case was understood by Nichols, is that goods can be ordered from which selection can be made, and that all can be kept, or a portion, or none and, if any are selected and kept by the jeweler, he has either to agree upon the terms of the sale, or pay cash for the property kept; that the title of the goods thus sent remains in the sender until paid for, or until it is agreed what credit will be given, which credit is evidenced by bills showing the terms. The goods in question were obtained under this memorandum contract, and were marked 'memorandum' or 'memoranda,' which it is alleged and shown mean the same thing. It is asserted by the appellant that the principle involved in this case was decided in favor of his contention in Rumpf v. Barto, 10 Wash. 382, 38 P. 1129, but that case, it seems to us, can easily be distinguished from the case at bar. There the goods were sent to the purchaser under the following contract: 'These goods are sent for your inspection, the property of Rumpf and Mayer, and to be returned to them within 'demand' [in writing] days. Sale only takes effect from date of their approval of your selection, and until then goods are to be held subject to their order. [Description.]' In that case Reichart had no customer, but made arrangements with one Mayberry by which the latter was to sell or pawn the goods for not less than $400, which sum was to be paid Reichart, and they were to divide the proceeds above that sum. Mayberry pawned them to Barto for $250, and ran away with the whole sum, he knowing that the goods did not belong to Reichart. The claim of Barto in that case was that he bought the goods from Mayberry, he at the time being the apparent owner; and this court said that Mayberry was simply a thief, and had obtained wrongful possession of the goods, and, of course, under such circumstances, could confer no title upon his vendee by conditionsl sale or otherwise. Burbank v. Crooker, 7 Gray, 158, was a case where the vendors made a contract with the vendee that they would deliver to him certain goods to be put into his shop for sale, but that the property in them should not pass to the vendee until the price was paid. The goods were sold without having been paid for, and an action was brought for their recovery, and it was held in that case by the supreme court of Massachusetts that the vendor could recover, but it was upon the ground that it was a conditional sale; and the court deplores the necessity of the decision in the following words: 'The whole doctrine of conditional sales, where the possession is in the vendee, and he is apparently the owner, is one rendering purchasers less secure of acquiring a good, indefeasible title; but it is well settled, and the purchaser in the present case from Knights takes the usual risk of the right of his vendor to sell his property.' It is insisted by the appellant that this case is decisive of the case at bar, but, as we have observed, the right of the vendor to recover in this case was based upon the theory of a conditional sale; and conditional sales, under our statute (section 4585, Ballinger's Ann. Codes & St.), will not protect the vendor unless his contract is filed in the auditor's office. The statute is as follows: 'All conditional sales of personal property or leases thereof containing a conditional right to purchase where the property is placed in the possession of the vendee shall be absolute as to all creditors, or purchasers in good faith, unless within ten days of the taking of possession by the vendee a memorandum of such sale, stating its terms and conditions and signed by the vendor and vendee, shall be filed in the auditor's office of the county wherein, at the date of the vendee's taking possession of the property, the vendee resides.' So, instead of Burbank v. Crooker, supra, being a case in favor of appellant's contention, it seems to us to sustain exactly the opposite doctrine, viz. that the contract in question is a conditional sale. The testimony in this case shows that the transaction falls within the words and spirit of the statute. It was a contract containing, in the language of the statute, 'a conditional right to purchase where the property is placed in the possession of the vendee'; and the evidence in this case not only showed that Nichols had a right to purchase this stock, but that he also had a right to sell the same. The testimony of Mr. Riordan, on page 15 of the record, on cross-examination, was as follows: 'Q. When goods are sent on memorandum, with the ownership as stated by you, you have a right to sell any of them or all? A. Yes, sir; you have a right to sell them. Q. To anybody? A. Yes, sir; to anybody.' It is true that on redirect examination in answer to the question, 'But you have got to pay for them in cash?' the witness answered, 'Yes,' but, notwithstanding this, the sale was warranted before the cash was to be paid. This must be true if the witness stated the truth that, when goods were sent on memorandum, the party receiving them had a right to...