Ross v. Fisher Co.

• Decision Date: 02 July 1928
• Docket Number: 21263.
• Parties: ROSS v. FISHER CO.
• Court: Washington Supreme Court

268 P. 883

148 Wash. 274

ROSS v. FISHER CO.

No. 21263.

Supreme Court of Washington

July 2, 1928

Department 1.

Appeal from Superior Court, Pierce County; F. G. Remann, Judge.

Action by Margaret M. Ross against the Fisher Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Harr H Johnston, of Tacoma, for appellant.

J. H Gordon, of Tacoma, for respondent.

MITCHELL J.

Mrs Margaret M. Ross was engaged in selling radio sets in Tacoma. The Fisher Company, of that city, financed the business. The Fisher Company procured a consignment to it of radios, for a stated period of time, from the manufacturers. It allowed Mrs. Ross to take them for sale on a commission, and, part of them not being disposed of within the time limit of the consignment, the manufacturers notified the Fisher Company to return them or pay for them. The Fisher Company notified Mrs. Ross to bring them in. She failed or refused to do so, notwithstanding her promise. The Fisher Company sent two of its servants for the radio sets, and they entered the home of Mrs. Ross during her absence and without her consent, or the consent of any one, and took possession of two of the instruments. She brought this suit, alleging unlawful trespass and conversion of the articles. The trial to the court without a jury resulted in her favor on account of trespass only. She has appealed from the denial of recovery for the alleged conversion.

While there was some contention on her part in the testimony to the contrary, the clear weight of the testimony was as we have stated it, and as the court found. She knew the arrangement and terms under which the respondent had procured the articles from the manufacturers, and at the time they were taken from her home she had no right of property in them, and her right of possession had passed to the respondent, who was responsible to the manufacturer under the terms of the consignment. As between them, the respondent was entitled to the possession, and the fact that the articles were obtained by committing a trespass gave her no cause of action in conversion.

At the conclusion of all the evidence the court orally announced a decision to the same effect as that contained in written findings and judgment subsequently entered. In the meantime the appellant filed what is designated as a petition; it is in that form, supported by her affidavit alleging facts tending to show that one of the...