Heermans v. Blakeslee

• Decision Date: 17 August 1917
• Docket Number: 13452.
• Citation: 97 Wash. 647,167 P. 128
• Parties: HEERMANS v. BLAKESLEE.
• Court: Washington Supreme Court

167 P. 128

97 Wash. 647

HEERMANS v. BLAKESLEE.

No. 13452.

Supreme Court of Washington, En Banc.

August 17, 1917

Appeal from Superior Court, Thurston County; John R. Mitchell Judge.

On rehearing.Judgment affirmed.

For former opinion, see93 Wash. 595, 161 P. 489.

Fullerton and Chadwick, JJ., dissenting.

Frank C. Owings and Thos. L. O'Leary, both of Olympia, for appellant.

Chas D. King, of Olympia, for respondent.

Hughes McMicken, Dovell & Ramsey and Peters & Powell, all of Seattle, Cullen, Lee & Matthews, of Spokane, and Kerr &amp McCord and Bausman, Oldham & Goodale, all of Seattle, amici curiae.

MOUNT, J.

The original opinion in this case may be found in 93 Wash. 595161 P. 489.We there affirmed the judgment of the lower court, upon the ground that the contract in question was, in substance, a chattel mortgage, and because the same was not accompanied by an affidavit of good faith, and was not acknowledged and recorded, we held that it was void as a chattel mortgage, and, for that reason, affirmed the judgment.A petition for a rehearing was afterwards granted, and the case was argued to the court sitting en banc.A majority of the judges are now of the opinion that the contract here in question is simply an assignment of a chose in action, and not a chattel mortgage, and that section 3659, Rem.Code, refers to tangible property, which may be taken into possession, and not to intangible property, such as accounts and mere things in action, which may not be taken into actual possession.Bellingham Bay Boom Co. v. Brisbois,14 Wash. 173, 44 P. 153, 46 P. 238.

The facts are fully stated in the former opinion, and need not be restated here.The contract is there sufficiently set out.It purports upon its face to be an assignment of all the earnings and income from sales of water and from service performed as a water company which shall become due and payable on or after January 1, 1915.The contract then recites that the creditor (the appellant Heermans) constitutes the debtor (the Washington Public Service Company, which we shall call the water company) his agent to collect and receipt for all the earnings and income by the contract assigned, and the creditor (Mr. Heermans) agrees that, if on each day on which such collections are made until the debt is fully paid the water company shall pay to Mr. Heermans one-half of the income and earnings collected on that day, '* * * and if the debtor shall perform and observe those agreements on its part hereinafter contained the debtor may retain the remaining one-half of each such days' collections for its own use, freed from all liens hereby created and freed from all liability to account to the creditor therefor as his agent.And further, in consideration of the premises, the debtor agrees with the creditor that the remaining half of its collections reserved to the debtor by any of the provisions of this agreement shall be by it promptly applied to the expense of operating and maintaining its water plant in Olympia (with such minor additional service connections and other additions as may be necessary to keep the plant in proper condition for service), including in such expense of operation and maintenance a monthly salary list not exceeding $515. * * *'

We shall assume, for the purposes of this case, that this contract is simply one of assignment, that the future earnings and income of the water company had a potential existence capable of assignment, and also that the...