John Smith Co. v. Hardin

• Citation: 233 P. 628,133 Wash. 194
• Decision Date: 26 February 1925
• Docket Number: 18706.
• Parties: JOHN SMITH CO. v. HARDIN et al.
• Court: United States State Supreme Court of Washington

233 P. 628

133 Wash. 194

JOHN SMITH CO. v. HARDIN et al.

No. 18706.

Supreme Court of Washington

February 26, 1925

Department 1.

Appeal from Superior Court, Franklin County; Truax, Judge.

Action by the John Smith Company, a corporation, against Walter T Hardin and another, doing business as Hardin Bros., the Kerr-Gifford Company, a corporation, and others. Judgment for plaintiff and lastnamed defendant appeals. Reversed, with instructions.

Sharpstein Smith & Sharpstein, of Walla Walla, for appellant.

Charles W. Johnson, of Seattle, for respondent.

BRIDGES, J.

John Smith made a contract with Hardin Bros. under the terms of which the latter were to sow to wheat certain of the former's lands, the tenant to receive two-thirds of the crops raised and the landlord to receive one-third, the same to be delivered to him in a warehouse to be agreed on. About the same time the tenant, so called, mortgaged to John Smith Company, a corporation, the 1920 crop of wheat to be raised on the land in question, to secure certain considerable sums of money. Later the John Smith Company brought this suit to foreclose its mortgage on the 1920 crop of wheat. By means of the answer and reply the action became in fact one for conversion as between the John Smith Company and Kerr-Gifford Company. It appears that the tenants sold all of the wheat to the lastnamed company. It was contended that the John Smith Company, the mortgagee, expressly consented to the sale and to the purchase price being paid to the tenants. The result of the trial was that judgment was entered against Hardin Bros., who owed the indebtedness, but all relief was refused as against Kerr-Gifford Company, and upon appeal to this court we held that John Smith Company had not authorized the tenants to sell the wheat free and clear of the mortgage or otherwise, and had not authorized Kerr-Gifford Company to pay the purchase price to the tenants. John Smith Co. v. Hardin Bros. et al., 126 Wash. 425, 218 P. 2. 'Wherefore judgment should have been entered against the respondent Kerr-Gifford Company for the value of the mortgaged wheat, which it admittedly received. Reversed, with directions to enter judgment in accordance with the views herein expressed.'

Upon the going down of the remittitur, additional testimony was taken, and the following facts were disclosed as shown by additional findings of fact made by the trial court: That 500 bushels of Bart wheat and 2,327 bushels of Turkey Red wheat were, during the latter part of August 1920, delivered by the tenant to Kerr-Gifford Company; that prior thereto a contract had been made between the tenant and Kerr-Gifford Company by the terms of which the latter was to buy all of this wheat, paying therefor $2.41 per bushel on the basis of No. 1 wheat; that the wheat in question was not as good as No. 1, and because thereof the contract price was reduced six cents per bushel, thus making it $2.35 per bushel. The findings also showed that at the time Kerr-Gifford Company brought the wheat and shipped it out it was worth $2.09 per bushel. The trial court entered judgment against the Kerr-Gifford Company and in favor of the John Smith Company for an amount equal to the contract or purchase price of the wheat. Kerr-Gifford Company has appealed.

We are first met with a motion to dismiss the appeal because a necessary party was not served with notice thereof. It appears that John Smith, the landlord, having died, his executrix (who was his widow) after the going down of the remittitur obtained permission to, and did, file an intervention complaint, seeking to recover, or at least to have it adjudged that she was entitled to one-third of the wheat as against both the John Smith Company and Kerr-Gifford Company. Before the final disposition of the case and before entry of judgment from which this appeal is taken, the court made an order dismissing the intervener out of the case, and thereafter she made no appearance therein nor did she take any appeal. It is now...