Department
2.
Appeal
from Superior Court, King County; Brinker, Judge.
Action
by Sander Kolatch, sole trader, doing business as the Seattle
Jobbing House, against I. Rome & Sons, a corporation, and
others. From judgment discharging bond for release of
property held under garnishment, plaintiff appeals. Reversed.
HOLCOMB, J.
This
appeal is from a judgment discharging and canceling a
dissolution or discharge bond given to obtain the release of
property held under garnishment. The appeal comes here on the
transcript of the record; no statement of facts being brought
up, and the only question involved is whether or not the
findings support the third and fourth conclusions of law and
judgment. The findings and conclusions, omitting formal
parts, are as follows:
'III. Thtat on July 13, 1922, plaintiff entered into a
contract with the defendant, Rochester Wholesale House, by
the terms of which the Rochester Wholesale House agreed to
sell and deliver to plaintiff 3,780 pairs of woolen drawers
new, packed in original mill cases, consisting of a good
assortment of sizes from 30 to 42 at 35 cents each. Said
contract further provided that plaintiff deposit 20 per cent
with the Rochester Wholesale House upon said order. And
plaintiff accordingly forwarded to, and the defendant has
received, the sum of $252 deposit upon said contract. That
said contract was in writing, and is evidence by a series of
telegrams.
'IV. That the defendant, Rochester Wholesale House, has
failed, neglected, and refused to deliver the drawers
stipulated in said contract, and has retained said deposit
but has offered to deliver as an alleged performance
thereunder drawers of inferior quality and of cheaper market
price, wholly in defiance with their contract with the
plaintiff; that said drawers so offered where renovated and
not new; were not packed in original mill cases, but in
bales, were not of assorted sizes, but 95 per cent. size 32
that 'good assortment of sizes' means, to the trade,
approximately the following proportions in every dozen:
Sizes
30
.................................. 1
32
.................................. 1
34
.................................. 2
36
.................................. 3
38
.................................. 3
40
.................................. 1
42
.................................. 1
'V. That plaintiff has been damaged by
the aforesaid breach of contract in the sum of 19 1/6 cents
per pair, amounting to seven hundred twenty-four and 50/100
($724.50) dollars; said 19 1/6 cents per pair being the
difference between the contract price and the actual market
value at the time and contract was made and breached.
'VI. That due demand for performance of said contract has
been made, which demand has been refused.
'VII. That said goods of the defendant offered in
purported compliance with the contract herein, have been
impounded by the service of writs of garnishment, issued out
of this court on November 13, 1922, directed against Federal
Reserve Bank, a corporation, and Northern Pacific Railway
Company, a corporation, and that said writs have been
dissolved by the giving of a redelivery bond, in which I.
Rome & Sons is principal, and the National Surety Company is
surety, which bond is conditioned to pay such judgment as the
court may enter in this action.
'Done in open court this 25th day of February, 1924.
Otis W. Brinker, Judge.
'From the foregoing findings of fact, the court makes the
following conclusions of law:
'I. That plaintiff is entitled to a judgment against the
Rochester Wholesale House in the sum of $976.50 with interest on $352 from
July 24, 1922, to November 1, 1922, and on said aggregate sum
from November 1, 1922, and for costs and disbursements
herein, such judgment to be payable only out of the interest
of the Rochester Wholesale House in the goods impounded by
the writs of garnishment issued out of this court on November
13, 1922, directed against the Federal Reserve Bank, a
corporation, and the Northern Pacific Railway Company, a
corporation.
'II. That the bond to discharge the writs of garnishment
given by defendant, I. Rome & Sons, as principal, and
National Surety Company, as surety, which bond is dated
November 30, 1923, operated to discharge said writs and
became substituted security for such judgment as plaintiff
might obtain in this action.
'III. That by the entry of the voluntary nonsuit herein
with prejudice and with costs, as against the defendant I.
Rome & Sons, the principal and surety on said discharge bond
were released and discharged from all liability on said bond.
'IV. Judgment should be entered canceling and discharging
said bond and holding the same for naught.'
Defendant
Rochester Wholesale House, a nonresident corporation, was
served by published summons, and a writ of garnishment was
obtained to support the process, in which the Federal Reserve
Bank, a corporation, and the Northern Pacific Railway
Company, a corporation, were named as garnishee-defendants.
The Rochester Wholesale House made no appearance, and its
default was duly entered after the completion of the
publication of summons.
The
discharge bond was given by the defendant I. Rome & Sons, a
corporation, under the provisions of section 689, Rem. Comp.
Stat., providing that:
'If the defendant in the principal
action, shall at any time before the entry of final judgment
in said principal action, cause a bond to be executed to the
plaintiff with sufficient sureties, to be approved by the
officer having the writ of garnishment, or after the return
of said writ, by the clerk of the court out of which said
writ was issued, to the effect that he will perform the
judgment of the court; the writ of garnishment shall, upon
the filing of said bond with the clerk, be immediately
discharged, and all proceedings had thereunder shall be
vacated. * * *'
Accordingly
the bond was conditioned as follows:
'The condition of this obligation is such that, whereas
in the above-entitled case a writ of garnishment was issued
by said court on the 13th day of November, 1922, directed
against the Federal Reserve Bank, a corporation, and the
Northern Pacific Railway Company, a corporation, and served
by the sheriff of King county upon the said garnishee
defendants on said day, as more fully appears by the
sheriff's return on file in said cause; and
'Whereas, the defendant, I. Rome & Sons, a corporation,
desires to obtain the discharge of such writ of garnishment;
'Now, therefore, if the said Rome & Sons, a corporation,
defendant, shall perform the judgment of the court in the
above-entitled case, then this
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