Kidder v. Wittler-Corbin Machinery Co.

• Decision Date: 07 April 1905
• Citation: 80 P. 301,38 Wash. 179
• Parties: KIDDER v. WITTLER-CORBIN MACHINERY CO. et al.
• Court: Washington Supreme Court

80 P. 301

38 Wash. 179

KIDDER v. WITTLER-CORBIN MACHINERY CO. et al.

Supreme Court of Washington

April 7, 1905

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by Gilbert K. Kidder, receiver of the Independent Lumber Company, against the Wittler-Corbin Machinery Company and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Peters & Powell, for appellant.

Willis B. Herr, for respondent Pierce.

Kerr &amp McCord, for respondent Machinery Co.

MOUNT C.J.

This action was brought by the plaintiff, as receiver of the Independent Lumber Company, an insolvent corporation, to recover possession of certain mill machinery, and to quiet title to the said machinery in the plaintiff. When the issues were made up and the case came on for trial, and after the plaintiff had made certain admissions, the trial court, upon the pleadings and admissions, dismissed the action. Plaintiff appeals.

The facts, as shown by the record, are substantially as follows In the year 1902 the Wittler-Corbin Machinery Company delivered to the Independent Lumber Company a certain tubular boiler and engine, with all the necessary fittings, valves etc., installed and ready for operation in the mill of the last-named company. This machinery was delivered under a conditional bill of sale for the price of $1,942, to be paid in installments from time to time. It was agreed that the contract should be construed as a lease until the full sum of $1,942 had been paid, and that time was the essence of the contract; that upon the failure of the lessee to make any of the payments, thereupon, without notice, the contract should be deemed canceled, and all payments theretofore made should belong to said Wittler-Corbin Machinery Company for the prior use of the said machinery, and that the lessor might retake the same into its possession; that the said property should at all times remain the property of the said Wittler-Corbin Machinery Company until all payments had been made. This contract was duly executed and placed of record. The Independent Lumber Company paid $600 under the terms of the contract, but failed and neglected to make other payments when the same became due. While payments were thus past due and unpaid, and after the Independent Lumber Company had become insolvent, the Wittler-Corbin Machinery Company declared a forfeiture of the contract with the Independent Lumber Company, and asserted its right to possession of said machinery, and thereafter resold the same to respondent W. S. Pierce, under a contract substantially the same as the one with the Independent Lumber Company, but at a less price, the contract price with said Pierce being $1,490.87. Pierce paid $450 down at the time the machinery was delivered to him, and the balance in full bebore this action was begun. At the time the Wittler-Corbin Company declared a forfeiture of the contract with the Independent Lumber Company, this company was insolvent, and owed a large amount of debts, with insufficient assets to pay the same. Respondent W. S. Pierce, who bought the machinery after the forfeiture, is a brother of S. H. Pierce, who was president of the Independent Lumber Company. It is alleged in the complaint that respondent knew of the insolvency of the corporation at the time of the forfeiture of the contract with the corporation, and that W. S. Pierce purchased the machinery under a secret fraudulent trust with the officers of the insolvent corporation, in fraud of the rights of the creditors of that corporation. This fraud was denied...