Sayward v. Thayer

• Decision Date: 12 October 1894
• Citation: 38 P. 137,9 Wash. 22
• Court: Washington Supreme Court
• Parties: SAYWARD ET AL. v. THAYER ET AL.

38 P. 137

9 Wash. 22

SAYWARD ET AL. v. THAYER ET AL.

Supreme Court of Washington

October 12, 1894

Dissenting opinion. For majority opinion, see 36 P. 966.

Per Hoyt and Anders, JJ., dissenting.

HOYT, J. (dissenting).

I am unable to concur in the foregoing opinion. The issues which could have been made upon the complaint were not the same as those which were or could have been decided in the former case of this plaintiff against some of these defendants, and for that reason the judgment in that case could not constitute such an adjudication as would in any manner prevent the maintenance of this action. In the former case plaintiff claimed to be the owner of the property in question, and upon the theory framed his complaint, and tried the issues made thereon. While claiming as such owner he could not claim as mortgagee, and for that reason the only persons who were proper parties to that action were the ones who had taken possession of the property. The person of whom he had purchased the property was not a necessary, nor even a proper, party, so that any allegations or proof tending to authorize a judgment of foreclosure would have been out of place in that action. The plaintiff sought to enforce his rights under the bill of sale, as he understood it, and from that standpoint his allegations and proofs were consistent, and, if found to be true by the jury would have required a judgment in his favor. The defendants introduced proof tending to show that the transaction was a different one, and the jury found in their favor; but to hold that the plaintiff, by reason of having attempted to enforce the contract as he understood it, thereby lost all rights thereunder, would be contrary to justice and the practice of courts in relation to trials. As well might it be claimed that a plaintiff who sought to recover $500 on an account and introduced proof showing or tending to show that he was entitled to that amount, would be precluded from recovering $100, which was conceded by the other side to be due, if the jury should find adversely as to his claim for the larger amount. Justice requires that a party should be allowed to litigate a matter from his own standpoint, and it should not be held that by reason of the fact that in so doing he claimed more than he was entitled to he must lose that to which he is entitled. The judgment in the former case was res judicata only to the extent that the title to the property did not pass to the plaintiff by virtue of the purported bill of sale. Such being the case, if under that judgment the property had been returned to the defendants, there could be no reason why it would not then be subject to the bill of sale held to be a mortgage; and, if the property would be so subject, there is no good reason why the judgment, which is in lieu of the property, should not also be subject to the mortgage.

It is further objected that the plaintiff does not, even in this action, allege that the bill of sale in question was a mortgage, and it is claimed that for that reason he should not be allowed to maintain the action. To my mind, his complaint and proofs in the former action and the complaint in this action are entirely consistent, and are in the only form in which they could have been truthfully stated and introduced. Plaintiff has not changed front in the least in regard to his understanding of the transaction evidenced by the bill of sale, and, not having done so, he could not be required to stultify himself by alleging in this action a contrary state of facts from that alleged by him in the former one. All that could be required of him was to allege the making of the bill of sale, and that by an adjudication binding upon him it had been declared to be in effect only a chattel mortgage. Having done this, he certainly should be allowed to recover upon it as such mortgage, for the reason that he would be precluded thereby from recovering upon it as anything else. To my mind, the complaint was entirely consistent with the former adjudication, and set out a cause of action, if the grantee in a paper executed as a bill of sale is entitled to asserts rights thereunder when it is shown to have been given as security. And that brings me to the discussion of the question of paramount importance, and as to which the majority of the court seem to have come to a conclusion which I believe to be not in accordance with reason or authority. What is said in the opinion in this case upon such question is to a considerable extent founded upon what was said by the court in the former one, to which reference has been made. It will be seen, however, by an examination of the issues in ...