Kimble Motor Car Co. v. Androw

• Decision Date: 25 May 1923
• Docket Number: 17799.
• Citation: 215 P. 340,125 Wash. 225
• Court: Washington Supreme Court
• Parties: KIMBLE MOTOR CAR CO. v. ANDROW.

215 P. 340

125 Wash. 225

KIMBLE MOTOR CAR CO. v. ANDROW.

No. 17799.

Supreme Court of Washington

May 25, 1923

Department 2.

Appeal from Superior Court, Walla Walla County; Edward C. Mills Judge.

Action by the Kimble Motor Car Company against Gust Androw individually and as administrator of the estate of Rose Della Androw, deceased. Judgment for defendant, and plaintiff appeals. Affirmed.

Earl W Benson, of Walla Walla, for appellant.

J. W Brooks, of Walla Walla, for respondent.

PARKER J.

By this action commenced in the superior court for Walla Walla county, the plaintiff motor car company seeks recovery from the defendant Androw, both individually and as administrator of the estate of his deceased wife, of an automobile placed in the possession of his deceased wife and now held by him as administrator of her estate under a conditional sale contract, in which the plaintiff is named as vendor and the deceased wife as vendee. A trial in the superior court, sitting without a jury, resulted in findings and judgment denying plaintiff any relief, from which it has appealed to this court.

The controlling facts, as we view them, are not questioned and may be summarized as follows: On October 7, 1920, the deceased entered into a contract with appellant in which there was embodied a promissory note in usual form, whereby she promised to pay to appellant the sum of $750 at a future date, as the balance due upon a conditional sale contract for the sale of the automobile in question to the deceased. The contract contains the usual provisions of a conditional sale contract, giving to appellant the right to reclaim the property upon failure of payment of the balance of the purchase price, as evidenced by the promissory note embodied therein. It also contains provisions in the nature of chattel mortgage provisions, which, however, we need not here notice, since the contract was neither executed nor recorded as a chattel mortgage, and it is now claimed by appellant to be a conditional sale contract. On January 3, 1921, Rose Della Androw died. Soon thereafter respondent, her husband, was duly appointed administrator of her estate. Default being made in the payment of the balance due upon the purchase price of the automobile, as provided by the conditional sale contract, appellant demanded possession thereof from respondent, who had possession of the automobile as administrator; which demand was refused by him. Soon thereafter appellant presented to respondent, as administrator, its duly verified claim for $750, which, in so far as we need here notice its language, reads as follows:

'The undersigned, creditor of the above-entitled estate, present its claim, with the necessary vouchers for approval, to wit: Estate of Rose Della Androw, Deceased, to Kimble Motor Car Co. of Ore., Dr.: One note (part of a conditional sale contract, a copy of said note and copy of the conditional sale contract is attached and made a part of said note), but the Kimble Motor Car Company of Oregon does not waive any of the conditions set forth in said conditional sale, and still intends to reserve title to said automobile described in said contract, in it until fully paid for as per contract, * * * $750.00 and int.'

This claim was duly allowed, approved, and filed in the superior court 'in the matter of the estate of Rosa Della Androw deceased,' and thereby became 'ranked among the acknowledged debts of the estate to be paid in the course of administration,' as provided by section 1480, Rem. Comp. Stat., relating to the allowance of claims in the probating of estates of deceased persons. Thereafter this action was commenced by appellant, seeking recovery of possession of the automobile...