Fidalgo Island Shingle Co. v. Brown

• Decision Date: 06 January 1911
• Citation: 61 Wash. 516,112 P. 629
• Parties: FIDALGO ISLAND SHINGLE CO. v. BROWN et al.
• Court: Washington Supreme Court

112 P. 629

61 Wash. 516

FIDALGO ISLAND SHINGLE CO. v. BROWN et al.

Supreme Court of Washington

January 6, 1911

Department 2. Appeal from Superior Court, Whatcom County; John A Kellogg, Judge.

Action by the Fidalgo Island Shingle Company against J. W. Brown, E Ruege, and others. Judgment for plaintiff, and defendant Ruego and another appeal. Affirmed.

E. M. Day and J. F. Moore, for appellants.

Romaine & Abrams, for respondent.

MORRIS J.

Appellants being held under a judgment of conversion of certain personal property, appeal.

The errors assigned are the overruling of a demurrer to the complaint, the allowance of an amendment to the complaint denying motion for judgment, and in the findings establishing the conversion. The complaint alleged that on January 28 1909, plaintiff under a conditional bill of sale turned the property over to defendants Brown & Nims at an agreed price of $3,100, which amount it was agreed might be paid by the delivery to plaintiff of certain sized lumber at prices therein fixed; that 150,000 feet of such lumber should be delivered on or before June 1, 1909, and the balance, payable in either lumber or cash, was to be paid during the year 1909. It was also agreed that the property should be removed to the mill of the Crescent Lumber Company in Whatcom county, and there kept and properly cared for until wholly paid for, and that title should remain in plaintiff until so wholly paid for; that Brown & Nims in March, 1909, delivered to plaintiff lumber of the value of $136.40, which is the only payment made under the contract; that on April 10, 1909, Brown & Nims sold the mill and plant of the Crescent Lumber Company, together with the property in controversy, to defendants Ruege & Cords, the bill of sale evidencing such sale reciting the agreement under which Brown & Nims held the property, and the amount then due, which Ruege & Cords assumed, Brown & Nims assigning to Ruege & Cords all their interest in the agreement between plaintiff and themselves; that on September 2, 1909, Ruege & Cords assigned their interest in the conditional bill of sale to defendants Mathews & Gilfillan, reciting the amount then due, which Mathews & Gilfillan assumed; that the property has not been properly cared for, and a portion of it has been lost and destroyed; that several demands have been made of the defendants for a delivery of the lumber agreed upon as part payment or a payment in cash, which have been denied. Judgment was demanded against all the defendants for the amount due. Defendants Brown & Nims were not served. The other defendants joined in a demurrer, upon the ground of defect of parties; that the action was prematurely commenced; that the court had no jurisdiction; and the failure to state a cause of action. The respondent then obtained leave to amend, and, by way of amendment, pleaded that the several assignments of the conditional bill of sale were without plaintiff's knowledge or consent, and that the property had been converted by the defendants Ruege, Cords, Mathews and Gilfillan, and that...