Meeker v. Johnson

• Decision Date: 03 December 1891
• Citation: 3 Wash. 247,28 P. 542
• Parties: MEEKER ET AL. v. JOHNSON.
• Court: Washington Supreme Court

28 P. 542

3 Wash. 247

MEEKER ET AL. v. JOHNSON.

Supreme Court of Washington

December 3, 1891

Appeal from superior court, Lewis county; MASON IRWIN, Judge.

Replevin by E. Meeker & Co. against Ira Johnson. There was judgment for defendant, and plaintiffs appeal. Reversed.

STILES and HOYT, JJ., dissenting.

Doolittle, Pritchard, Stevens & Grosscup and Reynolds & Stewart, for appellants.

John Mayo Palmer and James M. Pickens, for respondent.

DUNBAR J.

The articles of agreement out of which this action grew are as follows: "This agreement, made and entered into this ninth day of August, 1890, by and between Ira Johnson, of Napavine, county of Lewis and state of Washington, party of the first part, and E. Meeker & Company, of Puyallup, in the county of Pierce, state of Washington, parties of the second part, witnesseth, that the said party of the first part, for the consideration hereinafter named, has sold, transferred and set over, and by these presents does sell, transfer, and set over, unto said parties of the second part, their heirs and assigns, and agree to deliver to said parties of the second part, between the twentieth day of September, 1890 and the twentieth day of October, 1890, at the N. P. Railway station at Napavine, 10,000 pounds, more or less, being the entire crop of hops of the growth of the year 1890, more particularly described as ten thousand pounds of hops belonging to the said party of the first part and now growing upon his own farm near Napavine. The said party of the first part further agrees to complete the cultivation of said hops and in due season to pick, cure, and bale the same in bales of about 180 lbs. each, 7 lbs. per bale allowed as tare, or 200 lbs., and at the same time and place above specified to deliver the same, of strictly choice quality, of even color, well and cleanly picked, and thoroughly cured, but not high dried. In consideration whereof the said parties of the second part agree to pay said party of the first part the sum of 20 cents per pound for said hops, as follows, to-wit: ___ cents per lb., being the sum of ___ dollars, upon execution of said contract, the receipt of which sum is hereby acknowledged by said party of the first part; ___ cents per pound, being the sum of ___ dollars, for picking purposes, on demand, after the ___ day of September, 18___; twenty cents per lb., or the balance that may be due upon said hops, upon delivery and acceptance of the same by said parties of the second part. It is further agreed that said party of the first part shall keep said hops insured, from the time the same are picked until they are delivered, in a sum equal to all advance that shall have been made by said parties of the second part. Above insurance is not necessary, unless part payment is made before delivery of hops. In witness whereof the said parties have hereunto set their hands and seals the day and year first above written. IRA JOHNSON. [Seal.] E. MEEKER & CO. [Seal.] Signed, sealed, and delivered in presence of ED. KILBORN."

The 19th day of October, 1890, fell on Sunday. The evidence shows that on the 15th day of October the defendant began hauling the hops to the station at Napavine; on the 17th finished; and on the 18th, which was Saturday, the hops were inspected and weighed by Lowry, plaintiff's agent, and placed in a car which had been ordered by plaintiffs. They finished putting the hops in the car about 3 o'clock in the afternoon. They were placed there by the assistance, and with the consent, of the defendant. Then there was a conversation between Lowry and defendant, the substance of which was that defendant demanded the money down for the hops, and told Lowry he would give him until 12 o'clock that night to pay him, and, if he was not paid by that time, that he should claim the hops as his. Lowry answered that he would telegraph down to the chief office, and see what could be done. This conversation occurred after the hops had been put in plaintiffs' car, and there was no dispute about the quantity or value of the hops. On account of the condition of the wires, Lowry was unable to telegraph, and jumped on the next train, and went to Chehalis, and from there telegraphed his principal at Puyallup; not reaching Chehalis, however, until after the bank had closed for the day. It seems it would have been impossible for him to have reached Chehalis before the bank closed, leaving Napavine after weighing and calculating the value of the hops. It is conceded that there is no bank in Napavine, and that the bank at Chehalis is the nearest bank. On the opening of the bank on Monday morning Lowry procured the money, and returned to Napavine by the nearest and most direct means of conveyance, arriving there about 11 o'clock A.M., and tendered to Johnson in gold coin the full contract price for the hops, which Johnson refused to receive, claiming that plaintiffs had broken their contract, and that the hops were his. Some time during that afternoon Johnson opened the car, which was still standing on the side track, and removed the hops therefrom. On the 27th of October following plaintiffs brought an action of replevin for the recovery of the possession of the hops, or for their value, in case delivery could not be had, and for damages for their detention in the sum of $500, alleging the value of the hops to be $3,538.80. Upon the filing of the complaint and the proper process, the sheriff seized the hops, and, as defendant did not interpose any bonds for their redelivery, after the statutory time for furnishing such bonds had expired the sheriff delivered the hops to the plaintiffs, who disposed of them. The defendant answered, averring ownership of the hops, and right of possession, and alleging the value of the hops at $4,044, and praying that the court should determine that he was the owner and entitled to the possession. The case was tried before a jury, and the following verdict rendered: "We, the jury, find the issues for the defendant, and that the defendant, Ira Johnson, is the owner and entitled to the possession of the hops described in the pleadings herein." Exceptions were taken to the verdict on account of its form. There seems to be no essential conflict of testimony on the real facts in issue, and its consideration involves principally a determination of the law governing the facts.

We will first notice the contention that the verdict does not substantially comply with section 241 ^[1] of the Code, governing procedure in this character of cases. While it must be confessed that the section in question does not meet the strict requirements of any known work on composition or rhetoric, either in punctuation or phraseology, yet we think a liberal construction of the whole, with the object in view of rendering intelligent and effective every portion of the section, will lead to the conclusion that the legislature was intending to enact the statute that has been enacted in so many states, and provide that where the property has not been delivered to the plaintiff, and he recover, the jury shall assess the value of the property, or, where the defendant in his answer claims a return thereof, it shall assess the value of the property. Without going into a lengthy analysis of this section, it will be seen that any other construction will render meaningless a great portion, if not all, of the section. Under this statute we think the jury should have found the value of the property.

It is contended by the respondent that, if this was an error, it was not prejudicial to the plaintiffs, and that they cannot be heard to object to it; and some early California cases decided under a similar statute, are cited which seem to sustain this contention. But it seems to us that their reasoning is fallacious and their conclusions unfounded. The only theory upon which this doctrine can be sustained is that this action would be a bar to any subsequent action by defendant to enforce his judgment, or to obtain damages for non-performance of its requirements by plaintiffs. This seems to have been the theory in Morrison v. Austin, 14 Wis. 653, cited by respondent. In that case the court says: "The right to take a personal judgment, if for any reason a return of the property cannot be obtained, is clearly intended for the defendant's benefit. It is necessary for his protection where he elects to have a return and fails in securing it. If he chooses to waive it, and take the chances of obtaining a return of the property or realizing nothing from his judgment, the plaintiff ought not to object." The same idea seemed to obtain with the court in Waldman v. Broder, 10 Cal. 378, for the court says: "Nor is there anything in the failure to give an alternative judgment for the value of the property. This omission might be complained of by defendants if they had shown the value, but it is no ground of complaint on the part of the plaintiff." But we hardly think the respondent, while accepting the conclusions of these courts, would adopt their premises; and yet, in our judgment, the conclusions can only be justified by the premises. In another case cited, ( Nickerson v. Stage Co., 10 Cal. 520,) in an opinion rendered by Chief Justice TERRY, the court reaches the same conclusions, but destroys the theory that the plaintiff has no interest in the matter, and holds that the judgment in replevin did not constitute a bar to the action of trover, the judgment in replevin not having been satisfied. Says the court: "The defendant objects that under our statute there should have been a finding of the value in the replevin suit, and an alternative judgment for the return of the property or the payment of its value. This would have been necessary to enable the plaintiff to recover against the...