M. F. Brady & Son v. Bell

• Decision Date: 02 February 1917
• Docket Number: 13554.
• Citation: 162 P. 865,94 Wash. 496
• Court: Washington Supreme Court
• Parties: M. F. BRADY & SON v. BELL et al.

162 P. 865

94 Wash. 496

M. F. BRADY & SON v. BELL et al.

No. 13554.

Supreme Court of Washington

February 2, 1917

Department 2. Appeal from Superior Court, Clarke County; R. H. Back Judge.

Proceedings by M. F. Brady & Son against Ben J. Bell and another to establish an adverse claim to property levied upon under an execution in favor of Bell against Dietderick & Struder. From a judgment for defendants, plaintiffs appeal. Affirmed.

D. E Hardin, of Vancouver (R. Sleight, of Portland, Or., of counsel), for appellants.

R. C Sugg, of Vancouver, for respondents.

MORRIS J.

Appellants seek in this proceeding to establish an adverse claim to property levied upon under an execution in favor of Bell and against Dietderick & Struder. The property in question is a small 20-ton locomotive and was purchased by Dietderick &amp Struder from appellants June 1, 1915, under a conditional sales contract providing for deferred payments and that title should remain in the vendors until all payments were fully made. Delivery was made June 5th, and on June 21st the contract was received by the county auditor, filed and indexed as a conditional sales contract.

The decisive question on this appeal is whether, as held by the lower court, the controlling statute is Rem. Code, § 3670, providing that all conditional sales of personal property shall be absolute as to subsequent creditors and others unless a memorandum of the sale is filed in the auditor's office of the county wherein the vendee resides within ten days after the taking of possession by the vendee, or Rem. Code, § 8741, providing that no contract for the conditional sale or lease of railroad equipment or rolling stock retaining title in the vendor or lessor until payment is fully made shall be valid against subsequent judgment creditors or purchasers for value without notice unless the same shall be evidenced by an instrument duly acknowledged and filed for record in the office of the auditor of the county in which is situated the principal office of the vendee or lessee. If section 3670 controls the judgment is right. If section 8741 applies, the judgment is wrong.

The record further describes the engine as a small engine such as is used by loggers in their operations in getting out timber too small and too light for general railroad use. It was billed to Dietderick & Struder as a 'dinkey' engine, and shipped to them on a flat car. Dietderick & Struder were at the time engaged in logging, and as part of their operations had constructed a track three-quarters of a mile in length connecting the Northern Pacific Railway Company track with the timber in which they were operating. The engine was used exclusively on this track.

Section 8741 is part of the territorial act of 1883 (Laws 1883, p 62) entitled 'An act relating to certain contracts for the conditional sale or lease of railroad equipment and rolling stock and providing for the recording thereof.' This act is plainly indicative of an intention to include only 'railroad equipment and rolling stock' as such words are ordinarily used and understood. The word 'railroad,' when used in a statute, and not otherwise qualified, save for those variant decisions in which it is sought to determine whether or not street railways are included, is generally held to refer to those...