Gilbert Co. v. Husted

• Decision Date: 15 July 1908
• Citation: 96 P. 835,50 Wash. 61
• Court: Washington Supreme Court
• Parties: GILBERT CO. v. HUSTED.

96 P. 835

50 Wash. 61

GILBERT CO. v. HUSTED.

Supreme Court of Washington

July 15, 1908

Appeal from Superior Court, Snohomish County; W. A. Black, Judge.

Action by the Gilbert Company against Earl W. Husted. From a judgment for defendant on a counterclaim interposed by him plaintiff appeals. Reversed and remanded.

Larrabee & Wright, for appellant.

Sherwood & Mansfield and Hulbert & Husted, for respondent.

RUDKIN, J.

On the 3d day of July, 1903, the Allen & Gilbert-Ramaker Company entered into a conditional sale agreement with the defendant Husted for the sale of a piano. The purchase price of $325 was made payable as follows: $25 on the execution of the contract of sale, and $15 on the 3d day of each and every month thereafter until the purchase price, with interest at the rate of 8 per cent. per annum was fully paid. Title was to remain in the seller until the full payment of the purchase price. At the same time, and as a part of the same transaction, the parties to the conditional sale agreement entered into the following additional or supplemental agreement: 'It is hereby agreed by and between Allen &amp Gilbert-Ramaker Company, parties of the first part and Earl W. Husted, party of the second part, that the first party for and in consideration of the sale of a piano mentioned in a certain conditional sale of even date herewith, will transfer its moving account to the party of the second part until one-half of the said purchase price of three hundred twenty-five ($325) dollars is paid, provided the party, of the second part furnishes first-class work and at schedule prices.' At the time of the commencement of this action the sum of $250 had been paid on the purchase price, and the defendant was in default for the balance due. The action was instituted by the plaintiff, as successor in interest of the Allen &amp Gilbert-Ramaker Company, to recover possession of the piano, and damages for its detention, under the claim and delivery statute. The answer admitted the execution of the memorandum of conditional sale, and that only $250 had been paid on the purchase price, and alleged affirmatively that it was agreed by and between the parties that $175 of the purchase price should be paid in cash, and that the balance should be paid out of the profits arising from the moving contract above referred to; that the profits arising from the moving contract would amount to from $15 to $25 per month; that it was agreed that the contract should remain in force for a period of 10 months; that the Allen & Gilbert-Ramaker Company breached the moving contract on November 1, 1903, and transferred the moving contract to another; that the defendant was damaged in the sum of $90 by the breach of the moving contract, and had tendered the sum of $75 to the plaintiff in full payment and satisfaction of the balance due. On the issues presented by the complaint and affirmative answer the case was brought on for trial. The court found, in substance, that the defendant had paid $250 on the purchase price of the piano; that he had tendered and deposited in court the sum of $75 in full payment and satisfaction of the balance due; that he had been damaged in the sum of $90 by reason of the breach of the moving contract, and entered judgment decreeing that the defendant was the owner of the piano, free and clear of all incumbrance, and awarding him the sum of $43 from the tender deposited in court, together with costs of suit. From this judgment the plaintiff has appealed.

The respondent has moved to dismiss the appeal, on the ground that the value of the property in controversy is not sufficient to bring the case within the appellate jurisdiction of this court, and because the notice of appeal and appeal bond are defective. In actions of this kind the jurisdictional question is ordinarily determined by the actual value of the property, and not by the value as alleged in the complaint. Herrin v. Pugh, 9 Wash. 637, 38 P 213; Graves v. Thompson, 35 Wash. 282, 77 P. 384. The value in such cases is that found by the court or jury. Herrin v. Pugh, supra. But where judgment goes for the defendant, there is no finding by the court or jury on the question of value, and in such cases the value alleged in the complaint is the test of jurisdiction, subject to the qualification that the demand shall appear to have been made in good faith for such amount. Burkhardt v. Elgee, 93 Wis. 29, 66 N.W. 1137; Gorman v. Havird, 141 U.S. 206, 11 S.Ct. 943, 35 L.Ed. 717, and cases cited. If the rule were otherwise, a plaintiff dismissed without trial could never obtain a review of his case in this court. But if we are in error in this, we would still be compelled to look to the entire record to ascertain the jurisdictional facts, and could not consider ex parte affidavits filed in this court. Gray v. Blanchard, 97 U.S....