Fitz Henry v. Munter

• Decision Date: 29 December 1903
• Citation: 33 Wash. 629,74 P. 1003
• Court: Washington Supreme Court
• Parties: FITZ HENRY v. MUNTER et al. (MATTISON, Intervener. SHIREK BROS. & SEMERIA v. JOHNSON. WESTCOTT v. MUNTER & JOHNSON.

74 P. 1003

33 Wash. 629

FITZ HENRY v. MUNTER et al. (MATTISON, Intervener.

SHIREK BROS. & SEMERIA v. JOHNSON.

WESTCOTT v. MUNTER & JOHNSON.

Supreme Court of Washington

December 29, 1903

Appeal from Superior Court, Pierce County; W. H. Snell, Judge.

Actions by William Fitz Henry, Shirek Bros. & Semeria, and Charles L Westcott, against Lewis H. Munter and others. Thomas Mattison intervened. The actions were consolidated. From an adverse judgment, intervener appeals. Reversed.

M. Easterday and Thomas Mattison, for appellant.

F Campbell and E. E. Rosling, for respondent.

DUNBAR J.

The facts found by the court are substantially as follows: That prior to the 20th day of January, 1903, defendant Sarah Hirschfield was conducting in the city of Tacoma a dry goods and notion store in the ordinary course of trade, and had been so conducting the same for some time prior thereto; that in accordance with a certain notice which was inserted in the Tacoma Daily News she commenced selling her goods at auction on the 20th day of January, through plaintiff William Fitz Henry as her auctioneer, and continued said auction sale until the 23d day of January, 1903, at which time Mr. Munter of the firm of Munter & Johnson, defendants herein, proposed to said Sarah Hirschfield to take the balance of the stock then unsold, and to pay her therefor the sum of 50 cents on the dollar, invoice price; that Mrs. Hirschfield accepted said offer, and said auction sale closed, and that evening as per their agreement, they commenced taking the inventory of the balance of goods then unsold, and completed the same that night, and said Munter & Johnson removed said goods to their place of business in Tacoma; that plaintiff William Fitz Henry claims to have purchased said goods, and to have given Mrs. Hirschfield $1 to bind the bargain but he admits that his purchase of the same was not until after Mrs. Hirschfield had sold said goods to Munter & Johnson, of which fact he had knowledge, as he assisted Mrs. Hirschfield in negotiating the sale, and assisted in invoicing said goods for Munter & Johnson and Mrs. Hirschfield, and further admits that he has never paid her anything for said goods except the sum of $1; that on the 31st day of January, 1903, Shirek Bros. & Semeria recovered a judgment against Mrs. Hirschfield, William Fitz Henry, and S. Simon, in the justice court for Tacoma precinct, Pierce county, and caused a writ of garnishment to be served upon Munter & Johnson; that certain orders were made upon Munter & Johnson which were not complied with, and that another party, to wit, Charles L. Westcott, caused a writ of garnishment to issue against Munter & Johnson, garnishing any debts or moneys due from said Munter & Johnson to said Sarah Hirschfield; that plaintiff William Fitz Henry brings this action against Munter & Johnson for the purchase price of the goods and fixtures sold by Mrs. Hirschfield to Munter & Johnson; that Mrs. Hirschfield has been made a party defendant to this action, and has filed an answer disclaiming any right or interest in the proceeds of the sale of said goods to Munter & Johnson, or the money now in the registry of the court in this action; that said Munter & Johnson, not knowing to whom the $307.46 (which was the amount paid for the balance of the goods held by Mrs. Hirschfield after the auction sale had ceased) should be paid, have brought the same into court, and deposited it with the clerk of the court, to be distributed by the court to whomsoever the court should adjudge to be entitled to the same; that on or about the 25th day of April, 1903, Thomas Mattison, as assignee of various alleged creditors of Sarah Hirschfield, by leave of court f...