MacPherson v. Franco, 30941.

• Decision Date: 19 July 1949
• Docket Number: 30941.
• Citation: 34 Wn.2d 179,208 P.2d 641
• Parties: MacPHERSON v. FRANCO et al.
• Court: Washington Supreme Court

208 P.2d 641

34 Wn.2d 179

MacPHERSON v. FRANCO et al.

No. 30941.

Supreme Court of Washington

July 19, 1949

Department 2

Action by William MacPherson, doing business as MacPherson Realty Company, against Marco I. Franco, also known as M. Franco and Rose B. Franco, his wife, to recover the amount of a check issued, to plaintiff for a commission for the sale of a restaurant, wherein Frank Salvino, administrator of the estate of Victor Salvino, deceased, appeared as an additional defendant. From an adverse judgment, plaintiff appeals.

Judgment affirmed.

Appeal from Superior Court, King County; Hugh C. Todd, Judge.

Acheson & Smith, Seattle, for appellant.

Maslan & Maslan and Dwight N. Stevens, Seattle, for respondent.

SCHWELLENBACH Justice.

Victor Salvino employed the MacPherson Realty Company to sell his restaurant, the Marina Grill. Orson P. Bates, a salesman for MacPherson, placed an ad in the paper, which was read by the defendant, Marco I. Franco. Franco and Bates met at the restaurant and talked the deal over with Salvino. A couple of days later, October 25, 1946, Franco and his two sons went back and consummated the transaction. An agreement was drawn up by Al Franco, an attorney, and signed by the parties. The agreement was to pay $15,000.00 cash. Franco paid $1,000.00 earnest money. While they were there, Bates came in.

The next day Salvino, Bates and Al Franco met in the latter's office. Franco asked for a bulk sales affidavit as to creditors. Salvino said that there were a few creditors, but that he would pay them, so the notation, 'No Creditors' was written on the affidavit and filed. But it was agreed that the balance due would not be paid during the five-day period.

Bates testified that the day previous at the restaurant, when Salvino was handed the $1,000.00 check, he asked him about his commission, and Salvino said, 'I'll see that you get your commission.' This was denied by the Francos. Al Franco testified that the following day in his office Bates asked Salvino about his commission and the latter said to him, Franco, 'Well, you're going to hold out a certain amount of money for some of these creditors, and you might as well hold out this $1,500.00 for this commission.'

During the five-day period a large number of creditors appeared. The total amount of claims paid was $7,588.89. On October 6th Salvino approached Franco and said that he was going to the hospital the following day and needed his money. He said that he had a balance coming of $7,500.00 and to give him $6,000.00 and pay the rest ($1,500.00) to MacPherson. A hurried examination was made by Franco, who verified these figures and issued a check to Salvino in the sum of $6,000.00. On October 8th Franco sent his check in the amount of $1,500.00 to MacPherson. Later, Franco realized that he had overlooked the down payment of $1,000.00 and that the balance due Salvino was $6,500.00 instead of $7,500.00, so he stopped payment on the MacPherson check.

MacPherson commenced this action for the amount of the check issued to him. Franco denied liability and, as an affirmative defense alleged the facts heretofore related. Of the amount due Salvino on the transaction, he had a balance remaining of $411.11, which he paid into the registry of the court, to be disposed of as the court should determine. In the meantime Salvino had committed suicide and his administrator appeared in the action as an additional defendant and claimed the balance for the benefit of Salvino's estate.

The trial court dismissed MacPherson's action against the Francos, and awarded the $411.11 to Salvino's estate. This appeal follows.

Appellant states:

'This is a simple case of Novation. Franco was indebted to Salvino for the balance of the purchase price of the 'Marina Grill'. Salvino was indebted to MacPherson Realty

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