Smith v. Dahlquist, 24667.

• Decision Date: 04 January 1934
• Docket Number: 24667.
• Citation: 176 Wash. 84,28 P.2d 262
• Parties: SMITH et ux. v. DAHLQUIST et al.
• Court: Washington Supreme Court

28 P.2d 262

176 Wash. 84

SMITH et ux. v. DAHLQUIST et al.

No. 24667.

Supreme Court of Washington

January 4, 1934

Department 1.

Appeal from Superior Court, Whatcom County; Edwin Gruber, Judge.

Action by E. D. Smith and wife against Thomas S. Dahlquist and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

R. W Greene, of Bellingham, for appellants.

H. C Thompson and Ralph O. Olson, both of Bellingham, for respondents.

MAIN Justice.

This action was brought to recover the value of personal property which, it is claimed, the defendants converted. After the defendants had filed their answer, they made an application to have other parties brought in and to file a cross-complaint; which application was denied. The case went to trial Before the court and a jury upon the issues made by the complaint and the answer which contained no plea for affirmative relief. The jury returned a verdict for the defendants. The plaintiffs moved for judgment notwithstanding the verdict, and, in the alternative, for a new trial; both of which motions were overruled, and the plaintiffs appeal.

The facts are these: The respondents Thomas S. Dahlquist and Amelia Dahlquist, his wife, were the owners of a three-story building in the city of Bellingham, the second and third stories of which were devoted to hotel purposes and which was known for a time as the Mullin Hotel, and later as the Antlers. The appellants, E. D. Smith and Edna J. Smith, his wife, were experienced in the management of hotels and entered upon negotiations for the purchase of the furniture and fixtures in the Antlers. October 25, 1930, Agnes Mullin the then owner of the furniture and fixtures in the hotel gave to the appellants a bill of sale for the same, which recited that possession was not to be given until November 1, 1930. The purchase price, though not recited in the bill of sale, was $6,000. In order to finance the purchase, the appellants applied to the Pacific Loan Company, of which H. T. Morton was the principal stockholder and managing officer, for a loan. Morton advanced $6,000 and took a chattel mortgage to secure the notes given therefor. This mortgage was dated November 1, 1930.

October 24, 1930, Dahlquist and wife executed a lease for the hotel, and T. A. Morton, a brother of H. T. Morton, the manager of the Pacific Loan Company, was named as lessee. This lease contains two or three interlineations, and carries a rider which provides that the lessors, at their option, may terminate the lease and re-enter possession of the premises 'with the right to retain and use said furniture without charge therefor during the remainder of said term.' The lease also contained a provision that, in case of default, upon ten days' notice, the lessors might terminate the lease and re-enter the premises. The term of the lease was for three and a half years, beginning November 1, 1930, and expiring April 30, 1934. After these various instruments had been executed, and on November 1, 1930, the appellants went into the possession of the hotel and operated it until some time in December, 1931, when they removed from the hotel their personal effects and the furniture which they had placed therein and which was not covered by the bill of sale. At the time they moved from the hotel, nothing had been paid either upon the principal or the interest on the notes secured by the chattel mortgage, and they were in arrears for rent to the extent of approximately $1,000.

On or about January 9, 1932, the Dahlquists gave notice to the lessee that, unless the rent in default was paid, they would elect to forfeit the lease. Subsequently, on January 19th of the same month, they brought an action seeking to recover the possession of the premises. While this action was pending and Before it had been tried, the Dahlquists caused a writ of restitution to be issued, and, on the 23d of January, 1932, a deputy sheriff went to the premises and placed the Dahlquists in possession thereof. About an hour and a half Before the sheriff executed the writ, the lessee, T. A. Morton, had requested Mrs. Smith to come to the hotel, which she did, and, upon her arrival, he undertook to turn over the possession of the furniture and fixtures therein to her. Thereafter this action was brought against the Dahlquists, the sheriff and his bondsmen claiming that the Smiths were the owners and entitled to the possession of the property and that the Dahlquists and the sheriff had converted the same.

Without discussing the matter, it will be assumed that the writ of restitution under which possession was taken was wholly void for reasons not necessary here to state, and furnished no protection either to the Dahlquists or to the sheriff. Upon the trial, when the lease was offered in evidence, it was objected to by the appellants on the ground that it was not the lease under which they took possession because of the interlineations and the rider above referred to. The objections were overruled and the lease was admitted. The court, in its instructions, submitted the question to the jury as to whether the interlineations had been made and the rider placed on the lease prior to the time that it had been executed and delivered. Under the evidence, the jury had a right to find that the...