Peninsula Truck Lines, Inc. v. Tooker, 36808

• Decision Date: 30 January 1964
• Docket Number: No. 36808,36808
• Citation: 388 P.2d 958,63 Wn.2d 724
• Parties: PENINSULA TRUCK LINES, INC., a corporation, Respondent, v. L. A. TOOKER, Appellant.
• Court: Washington Supreme Court

Page 724

63 Wn.2d 724

388 P.2d 958

PENINSULA TRUCK LINES, INC., a corporation, Respondent, v. L. A. TOOKER, Appellant.

No. 36808.

Supreme Court of Washington, Department 2.

Jan. 30, 1964.

Johnston & Raley, Port Angeles, for appellant.

Johnson, Jonson & Inslee, Evan E. Inslee, Seattle, for respondent.

DAWSON, Judge. ¹

Peninsula Truck Lines, Inc., brought this action to obtain a decree declaring that a note and mortgage were fully paid and satisfied, and requiring defendant to endorse and deliver to plaintiff the certificates of title covering the vehicles (excluding two hereinafter referred to) which had been sold by defendant to plaintiff. The certificates had been retained under the chattel mortgage to secure payment of the note.

Plaintiff had paid the note in full and the controversy between the parties arose from the following circumstances. The defendant sold plaintiff vehicles and other assets of Tooker Motor Freight on March 31, 1951. Described and included in the bill of sale and chattel mortgage were a 1941 home-made semi-trailer and a 1936 GMC tractor. Neither was in operating condition and plaintiff did not take possession of them. They remained on defendant's premises for approximately 10 years. After the other vehicles were delivered, defendant billed plaintiff for storage charges at an early date and periodically thereafter. Plaintiff repeatedly denied defendant's right to collect storage. By cross-claim, defendant prayed for judgment in the amount of $5,881.50 for storage of the vehicles and certain freight bills.

Plaintiff prevailed and a summary judgment dismissing defendant's cross-claim was granted on the ground that there was no genuine issue of any material fact and

'That the defendant's cause of action, if any, accrued more than six years prior to commencement of this action by the plaintiff or defendant and as a matter of law the statute of limitations has run on any claim of the defendant.'

Defendant appeals.

On the premise that a judgment will be sustained if any theory upholds it, respondent has advanced the following hypotheses: (1) the statute of limitations has run; (2) title to the two undelivered vehicles remained in appellant; (3) the chattel mortgage lien does not include storage charges; and (4) appellant, as an involuntary or gratuitous bailee, is not entitled to compensation for storage, at least in absence of an express agreement therefor. Appellant's position on appeal is that regardless of which course we pursue, we find genuine issues of material fact awaiting us. It is argued that on any theory the summary judgment cannot be sustained.

Appellant concedes that, because his answer and cross-claim were verified by his attorney on belief only, and he filed no counter affidavits, respondent's affidavit and presentation must be accepted as stating the established facts of the case. We are in agreement with this view. Stringfellow v. Stringfellow, 53 Wash.2d 639, 335 P.2d 825. Such facts, however, must be based upon personal knowledge. Further, statements of conclusions and other surplusage will be disregarded. Rule of Pleading, Practice and Procedure 56(e), Henry v. St. Regis Paper Co., 55 Wash.2d 148, 346 P.2d 692. Further, we must measure respondent's factual showing in the light of the rule that respondent, as the moving party, had the burden of showing that there was no genuine issue of facts, irrespective of where the burden would rest at the trial. Preston v. Duncan, 55 Wash.2d 678, 349 P.2d 605.

Before we consider whether the statute of limitations bars appellant's claim, it is first necessary to measure appellant's rights. If our treatment appears synthetical, it is because the problem does not lend itself to seriatim consideration. The fact there was no voluntary transfer of possession from appellant to respondent does not alter respondent's legal right to possession of the inoperative vehicles. However, if legal title did not pass, or there was an abandonment of the property, there is no legal basis to support a present claim for storage.

Did title pass? This question must be answered by ascertaining the intent of the parties. RCW 63.04.200(2) provides:

'Where there is a contract to sell specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until such thing be done.'

Respondent contends this rule is applicable because a covenant of the chattel mortgage required that respondent 'maintain, preserve and keep such property in good repair, working order and condition.' We, therefore, must infer, it is said, an intent that title would not pass until the vehicles were put into a deliverable condition by the vendor.

The rules for ascertaining the intent of the parties, provided in RCW 63.04.200, are applicable only if a contrary intent is not shown. The following factors weigh against the contention that title did not pass: (1) The only statement of condition in the contract was that 'The sale * * * shall be effective upon the approval thereof by the Interstate Commerce Commission * * *' Payments were to begin when these permits had been received. (2) The bill of sale was executed one year after the original agreement to sell and the I.C.C. permits were obtained. It contained no conditions precedent affecting the passing of title. Indeed, the document indicated a completed sale--the 'property * * * is hereby conveyed,' the buyer 'accepts the property * * * conveyed.' (3) Neither the bill of sale nor the original agreement made provision that the vehicles were to be in an operative condition. (4) Respondent paid the full purchase price. This circumstance gives rise to the strong inference that present ownership was intended to be transferred. Vold, Law of Sales (2d ed.) § 24, p. 140.

It seems clear that title passed to respondent. The mortgage covenant relied upon by respondent deals primarily with preservation of security, not terms and intent of sale. The most that can be said is that if an ambiguity exists, it will raise a factual question, which must be resolved in the light of all relevant circumstances. Such factual dispute, as to meaning, will defeat a motion for summary judgment. Rolle Mfg. Co. v. Marco Chemicals, Inc., D.C., 92 F.Supp. 218; Neiman-Marcus Co. v. Lait, D.C., 107 F.Supp. 96.

Respondent argues that even if title did pass to it, the theory of abandonment bars the claim in this case. We are unable to find any supporting facts to clothe such theory with an intent to abandon. Ferris v. Blumhardt, 48 Wash.2d 395, 293 P.2d 935; Manello v. Bornstine, 44 Wash.2d 769, 270 P.2d 1059, 45 A.L.R.2d 494.

Appellant's retention and refusal to deliver title certificates to the vehicles in respondent's possession after the purchase price was paid in full were predicated upon a continuing mortgage...