Leland v. Frogge

• Decision Date: 11 May 1967
• Docket Number: No. 38745,38745
• Parties: Pansy LELAND, a widow, Plaintiff, v. James Ray FROGGE and Josephine Ann Frogge, his wife, Appellants, Lynn Mansell and Helen Mansell, his wife, Respondents.
• Court: Washington Supreme Court

Page 197

71 Wn.2d 197

427 P.2d 724

Pansy LELAND, a widow, Plaintiff, v. James Ray FROGGE and Josephine Ann Frogge, his wife,

Appellants, Lynn Mansell and Helen Mansell, his

wife, Respondents.

No. 38745.

Supreme Court of Washington, Department 1.

May 11, 1967.

Charles T. Sharp, Clarkston, for appellants.

S. Dean Arnold, Clarkston, for respondents.

ARMSTRONG, Judge.

In December 1963, the marital community of Lynn and Helen Mansell sold to the marital community of James and Josephine Frogge the merchandise, fixtures and business known as "Kressne Dime Store" in Clarkston. The transaction was carried out by what purported by its title to be a conditional sales contract. Mr. Frogge will hereafter be referred to as the sole appellant and Mr. Mansell as the sole respondent.

Contemporaneously with the sale, Frogge negotiated a loan from a Mrs. Leland secured by a chattel mortgage on the merchandise. The current action was instituted by Mrs. Leland who sought to foreclose the mortgage with Frogge and Mansell as defendants. The foreclosure was granted on August 3, 1965, and is not contested here. The rights between buyer and seller were at that time specifically left for later determination.

Mrs. Leland instituted the original action on April 6, 1965. It appears that on April 7, having previously sent to appellant Frogge a "Notice of Intent to Declare Forfeiture," respondent Mansell took possession of the store and its contents. Appellant Frogge claims that his property was thereby unlawfully converted; respondent Mansell counters that he had a right to seize it under the sales agreement. Appellant contends any security interest created by the agreement is limited to the merchandise originally purchased. Respondent says the interest extends as well to all merchandise thereafter acquired.

It is apparent that the rights of the parties are governed primarily by the legal incidents of the sales agreement--yet, because of the summary disposition set out below, it is not now before us for consideration.

Appellant Frogge answered the Leland complaint and cross-complained against respondent Mansell, alleging the latter's conversion of the merchandise in the store. Respondent Mansell answered, denying the allegations of the cross-complaint. At the time Leland's forfeiture was granted appellant's motion for summary judgment was denied. Thereafter, respondent Mansell amended his answer to include abandonment of the merchandise as an affirmative defense. Appellant Frogge again moved for a summary judgment. Respondent Mansell submitted an affidavit resisting the motion.

On October 19, 1965, in response to appellant's second motion for summary judgment, the trial court entered an order reading in part as follows:

IT IS ORDERED that Cross-Complainants, JAMES RAY FROGGE and JOSEPHINE ANN FROGGE, his wife, do have and recover judgment against Defendants, LYNN MANSELL and HELEN MANSELL, his wife, for the value of the merchandise as shown on the inventory taken on or about April 7, 1965 in the sum of $10,983.70.

IT IS FURTHER ORDERED that Defendants, LYNN MANSELL and HELEN MANSELL, his wife, do have and recover judgment against Cross-Complainants, JAMES RAY FROGGE and JOSEPHINE ANN FROGGE, his wife, for the sum of $13,256.71, less the credit for the judgment in favor of JAMES RAY FROGGE and JOSEPHINE ANN FROGGE in the amount of $10,983.70, leaving a net judgment in favor of Defendants, LYNN MANSELL and HELEN MANSELL, his wife, against Cross-Complainants, JAMES RAY FROGGE and JOSEPHINE ANN FROGGE, his wife, in the sum of $2,273.01.

In his memorandum decision the trial judge explained this action by saying that, although he believed the sales agreement was effective neither as a conditional sales agreement nor as a chattel mortgage, "nevertheless it is a binding promise on the part of the Frogges to pay a sum certain to the Mansells for the then merchandise in the Mansell store, known as the 'Kressne' store. * * * [W]e are here dealing with an instrument that in essence amounts to nothing more nor less than a 'promise' to pay a stipulated sum for the purchase of a stock of 'shifting merchandise.' "

We must determine whether the trial court's order was correctly made. Appellant's position is that there are two judgments--one in favor of himself and one adverse to him. He has appealed from the latter. If this portion must be reversed, we must, in addition, consider whether the remainder favoring appellant Frogge, can stand.

The propriety of the trial court's ruling is governed by Rules of Pleading, Practice and Procedure 56, RCW vol. O, setting out the grounds upon which summary judgment may be granted. The pertinent portion of the rule, 56(c), says in part:

(c) Motion and Proceedings Thereon. * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The function of a summary judgment is to determine whether there is a genuine issue of material fact requiring a formal trial. Balise v. Underwood, 62 Wash.2d 195, 381 P.2d 966 (1963); Olson v. Balch, 63 Wash.2d 938, 389 P.2d 900 (1964). The evidence before the judge is that contained in the pleadings, affidavits, admissions and other material properly presented. State ex rel. Bond v. State, 62 Wash.2d 487, 383 P.2d 288 (1963); 3 Barron & Holtzoff, Federal Practice and Procedure § 1236. When a pleading or affidavit is properly made and is uncontradicted, it may be taken as true for purposes of passing upon the motion for summary judgment. Preston v. Duncan, 55 Wash.2d 678, 349 P.2d 605 (1960); Henry v. St. Regis Paper Co., 55 Wash.2d 148, 346 P.2d 692 (1959). A party may not rest on formal pleadings, but must affirmatively present the factual evidence upon which he relies. Reed v. Streib, 65 Wash.2d 700, 399 P.2d 338 (1965); Meissner v. Simpson Timber Co., 69 Wash.Dec.2d 954, 421 P.2d 674 (1966). With these rules in mind, we turn to a consideration of the summary judgment entered in this case.

It is clear that the portion of the judgment against appellant...