Kriegler v. Spokane Merchants' Ass'n

• Decision Date: 19 May 1920
• Docket Number: 15615.
• Citation: 189 P. 1004,111 Wash. 179
• Court: Washington Supreme Court
• Parties: KRIEGLER v. SPOKANE MERCHANTS' ASS'N.

189 P. 1004

111 Wash. 179

KRIEGLER v. SPOKANE MERCHANTS' ASS'N.

No. 15615.

Supreme Court of Washington

May 19, 1920

Department 2.

Appeal from Superior Court, Lincoln County; Joseph Sessions, Judge.

Action by L. C. Kriegler against the Spokane Merchants' Association for an accounting. Judgment for the plaintiff for a part of the relief claimed, and both parties appeal. Modified and affirmed.

Wakefield & Witherspoon, J. D. Campbell, and J. B Campbell, all of Spokane, for appellant.

J. D McCallum, Martin & Jesseph, and M. E. Jesseph, all of Davenport, for respondent.

MOUNT J.

This action was brought for an accounting against the defendant. Trial to the court without a jury resulted in a judgment in favor of the plaintiff for the return of certain property and for a money judgment on account of real estate sold by the defendant. Both parties have appealed from the judgment. We shall therefore designate them as 'plaintiff' and 'defendant.'

It appears that, prior to the year 1915, the majority of the stock of the Kriegler-Page Mercantile Company was owned by the plaintiff and her husband, E. J. Kriegler. A few shares were owned by another party. The management of the company was under the control of E. J. Kriegler, during his lifetime. After E. J. Kriegler's death, his wife, claiming to own all the stock of the company, undertook to manage the business. It did not prosper, and on the 5th day of May 1915, she made an assignment of all the property of the company to the defendant, Spokane Merchants' Association, a corporation. This assignment was made for the benefit of creditors, and the assignee went into possession of all the property under an agreement to dispose of the merchandise on hand to pay the creditors and thereupon return the balance of the property to the plaintiff. The property included in the assignment consisted of a stock of general merchandise and also of certain real estate in the town of Ruff, in Adams county, and in the town of Odessa, in Lincoln county. After the assignment, the assignee made sales of the personal property and conducted the business for a period of several months. The plaintiff then made a demand upon the defendant that the balance of the property be returned to her in accordance with the agreement at the time of the assignment. She alleged in her complaint, in substance, that the property of the Kriegler-Page Mercantile Company was wasted and dissipated; that great loss resulted to her by reason thereof; that various articles of merchandise were sold at less than their real value; that the real estate in the town of Odessa was sold without her consent and at a price less than half the sum it could have been sold for if the assignee had used reasonable care or any degree of care in procuring a purchaser; and that the assignee was guilty of a breach of trust in disposing of the real estate.

The trial of the case was lengthy. It involved an accounting between the parties, and many items were considered. The court, after listening to all the evidence, was of the opinion that the assignee, in the discharge of its duties in handling the merchandise and personal property assigned to it, had used due diligence; that the plaintiff, during most of the time when the sales were taking place, was present in the store or about the premises, and knew of the manner in which the sales were made and the prices obtained therefor, and made no objections thereto, The court therefore concluded that the defendant had performed its full duty in regard to the items of personal property handled by it. In regard to the real estate in the town of Odessa, which consisted of a brick store building, the trial court was of the opinion that the assignee did not use due diligence in making the sale of this property; that it was sold for less than half its value and without the knowledge of the plaintiff; that if the defendant had used due diligence or due care the property would have been sold for at least $10,000, when it was actually sold for $5,000. The court, for that reason, entered a judgment in favor of the plaintiff for the difference between what the real estate ought to have been sold for and what it was actually sold for.

The defendant argues, first, that the plaintiff had no right to bring this action. This contention is based upon the claim that the plaintiff is not the owner of the stock of the Kriegler-Page Mercantile Company. It is argued that a part of this stock descended to her by reason of the ownership of her husband, that her husband's estate was in process of administration in the probate court, and that it was the duty of the administrator of that estate to bring the action. There are two sufficient answers to this assignment of error: First, the complaint alleges that the administrator of the estate of E. J. Kriegler, deceased, refuses to bring the action; and, second, it was shown upon the trial, without any contradiction, that all of the stock of this Kriegler-Page Mercantile Company, before the death of E. J. Kriegler, was assigned to the plaintiff, and that the plaintiff was the owner thereof; that the shares that were held by other persons had been purchased by her before this action was begun. So it appears from the record that the plaintiff is the sole owner of all the stock of the corporation, and therefore may maintain the action.

The defendant next assigns several errors on account of persons being permitted to testify as to the value of the real estate, maintaining that these persons were not qualified to testify. We shall not discuss these assignments in detail. The case is triable here de novo, and we shall consider only evidence which was admissible. There were several witnesses who testified as to the value of the property. One of these witnesses was G. W. Finney, who testified that he had lived in Odessa for 32 years, had laid out the town site, knew the property in question, had bought and sold property in the town, and knew the value of this particular real estate. Clearly, this witness was competent to testify as to the value of the property. He did so testify, and placed its value at from $12,000 to $13,000. There were other witnesses, equally competent to testify, and all the witnesses for the plaintiff placed the value of the real estate in the town...