Fischnaller v. Sussman

• Decision Date: 24 March 1932
• Docket Number: 23630.
• Citation: 9 P.2d 378,167 Wash. 367
• Parties: FISCHNALLER v. SUSSMAN.
• Court: Washington Supreme Court

9 P.2d 378

167 Wash. 367

FISCHNALLER v. SUSSMAN.

No. 23630.

Supreme Court of Washington

March 24, 1932

Department 1.

Appeal from Superior Court, Pierce County; E. D. Hodge, Judge.

Action by H. R. Fischnaller, doing business as Fischnaller & Co. against Frank Sussman, doing business as the Frank Sussman Company and the Frank Sussman Steel Company, in which defendant filed a cross-complaint. Judgment for plaintiff and defendant appeals.

Affirmed.

S. A Gagliardi, of Tacoma, for appellant.

L. B. Schwellenbach, of Seattle, and Robert B. Abel, of Tacoma, for respondent.

BEELER J.

The plaintiff brought this action to recover damages for the wrongful conversion of personal property consisting of steel railway rails. The plaintiff alleged that, prior to and during the month of September, 1929, it was the owner of approximately 110 tons of logging railroad rails located at Carlisle, Wash., and that, between the months of September and November of that year, the defendant, without authority, right, or permission, seized and converted the rails to its own use, and refused, on demand, to return them. The defendant in its answer denied the material allegations of the complaint, and by cross-complaint alleged that from November 5 to December 13, 1929, there had been shipped to its warehouse and junk yard at Tacoma, Wash., secondhand steel rails for storage; that it was at all times ready and willing to return the rails, provided the storage, freight, and labor charges which it had advanced for handling and transporting the rails were paid. The reply placed in issue the affirmative allegations of the cross-complaint. Upon these issues the cause proceeded to trial, and resulted in a verdict for the plaintiff in the sum of $1,815. The defendant's motion for a new trial was overruled, and judgment entered on the verdict. The defendant has appealed.

The appellant contends that the court erred, first, in the giving of certain instructions to the jury, and in the refusal to give its proposed instruction No. 6; second, in not permitting the appellant to prove the disbursements or payments it had made for labor and transportation charges in handling the steel; third, in overruling its motion for a new trial.

The facts are these: For several years prior to September, 1929, the respondent owned a sawmill at Carlisle, Wash., together with a logging railroad extending from its mill into the woods, and from its mill to the Northern Pacific Railway tracks; that the steel rails on this logging railroad were owned partially by one Neff and partially by the respondent, the former owning the light rails--twenty pounds or less, and the latter the heavy rails--thirty pounds or upwards. July 25, 1929, the Crystal Coal Company, with offices at Tacoma, Wash., through its president and secretary, Gerlach, and one Lang, working out of the office of the coal company, interviewed Neff with a view of purchasing his rails. As a result of these negotiations, Neff sold his rails to the coal company, and the company in turn delivered to him its promissory note of $500, together with $2,000 of its corporate stock, in payment thereof. About thirty days later, and after the appellant, Sussman, had examined the rails at Carlisle, he purchased the Neff rails from the coal company. In September following Lang ordered Neff to tear up his rails, and the latter employed a Mr. St. Ours to perform the necessary work in connection therewith. While St. Ours was engaged in taking up the Neff rails, Lang again appeared on the scene and ordered him to tear up and remove all of the rails, stating he had purchased the heavy rails from the respondent. St. Ours testified that Lang said: 'I want all the steel; I bought all the steel, and I want it all. From now on pick it all up.'

About October 5 the respondent, Fischnaller, who prior to and at that time was residing and operating a hotel at Omak, Wash., distanced several hundred miles from Carlisle, happened to be in Carlisle, and incidentally learned that his steel logging rails were being removed. Thereupon he instructed St. Ours to pile his rails in the millyard at Carlisle. The respondent also gave Lang explicit orders not to touch nor remove his rails. On or about October 12 the respondent returned to Carlisle and paid all labor charges incurred up to that time in removing and piling his rails. The respondent again left Carlisle, and, returning three or four weeks later, discovered that all of his rails had been removed and shipped away.

Lang testified that Sussman paid all of his expenses in connection with 'getting the rails out,' and that he had informed Sussman that the heavy rails 'belonged to Fischnaller.'

'Q. Now, you said that Mr. Sussman paid you for your expenses involved in reference to this transaction? A. Yes, sir. It cost me four or five extra trips to Hoquiam and down to Carlisle and they can not be made for nothing. * * *

'Q. Now, at the time that Mr. Sussman advanced these charges did he know that these rails belonged to Mr. Fischnaller? A. Yes, sir.

'Q. You told him they belonged to Mr. Fischnaller? A. Yes, sir, that was the first thing he was told.' (Italics ours.)

Sussman himself corroborated Lang. The evidence is clear that he knew that the rails belonged to Fischnaller, and that Fischnaller had not authorized the shipment of his rails to Tacoma.

'Q. You knew at that time that the rails belonged to Mr. Fischnaller? A. Yes, sir.

'Q. And that it was down there is Carlisle? A. Yes, sir.

'Q. And was being shipped here? A. Yes, sir.

'Q. And that Mr. Fischnaller did not know anything about it? A. Well, they could not locate Mr. Fischnaller at that time.

'Q. Well, you knew Mr. Fischnaller did not know anything about it? A. Well, that is what they told me; they could not locate him.' (Italics ours.)

We quote from the testimony of Lang and Sussman to show...