Smith v. Dement Bros. Co.

• Decision Date: 05 February 1918
• Docket Number: 14234.
• Citation: 100 Wash. 139,170 P. 555
• Parties: SMITH v. DEMENT BROS. CO. et al.
• Court: Washington Supreme Court

170 P. 555

100 Wash. 139

SMITH v. DEMENT BROS. CO. et al.

No. 14234.

Supreme Court of Washington

February 5, 1918

Department 1. Appeal from Superior Court, Walla Walla County; Edward C Mills, Judge.

Action of interpleader by J. Z. Smith against the Dement Bros Company, a corporation, and Carl Coon and Eva Coon, his wife and Sam L. Coon and Florence Coon, his wife. Judgment for Sam L. Coon and wife, and the Dement Bros. Company appeals. Affirmed.

J. G Thomas and W. A. Toner, both of Walla Walla, for appellant.

Sharpstein, Smith & Sharpstein, of Walla Walla, for respondents.

WEBSTER J.

This is an action of interpleader. The complaint alleges in substance: That Dement Bros. Company, a corporation, commenced an action in the superior court for Walla Walla county against defendants Carl Coon and Eva Coon, his wife, claiming an indebtedness against them in the sum of $3,205.26, together with interest thereon at the legal rate from November 4, 1916; for the further sum of $439.05, with interest from July 5, 1916, at the rate of 8 per cent. per annum; for the sum of $49.45, with interest from November 4, 1916, at the legal rate; and for the further sum of $50 as attorney's fees--and in such action caused a writ of garnishment to be issued directed to J. Z. Smith--plaintiff herein. That prior to the service of the writ, Sam L. Coon--respondent herein--had indorsed to the plaintiff certain warehouse wheat receipts, whereby the plaintiff purchased from Sam L. Coon certain wheat evidenced thereby, and at the date of the service of the writ on him the plaintiff, J. Z. Smith, had in his possession the sum of $5,867.20, representing the purchase price of said wheat. That Dement Bros. Company claim to be entitled to receive from the plaintiff, by virtue of the writ of garnishment, the several sums alleged due it from Carl Coon. That Sam L. Coon claims that the wheat so sold to the plaintiff, J. Z. Smith, is the property of Sam L. Coon, and demands that the plaintiff pay to him the amount of money in plaintiff's possession as the purchase price of the wheat. That the plaintiff is unable to determine to whom the money held by him should be paid, or any part thereof. That plaintiff claims no interest whatever in the money, except to see that the same is paid to the person or persons rightfully entitled thereto, and alleging that he pays the money into court that the claims, rights, and interests of the parties thereto be adjusted and adjudged by the court. Service of the summons and complaint, by receipt of a true and correct copy thereof, was admitted on November 21, 1916, by Sam L. Coon and Florence G. Coon, defendants, and by Dement Bros. Company, defendant, by W. A. Toner, its attorney. Though Carl Coon and Eva Coon, his wife, were made parties to this action, neither the plaintiff's complaint nor the pleadings of the other defendants were personaily served upon them; however, service of a copy of the answer of Dement Bros. Company was admitted by Sharpstein, Smith & Sharpstein, as attorneys for defendants Carl Coon and wife and Sam L. Coon and wife.

Dement Bros. Company answered the complaint by alleging affirmatively that during the year 1916 defendants Carl Coon and Sam L. Coon, who are brothers, were engaged in farming certain premises in Walla Walla county under lease from the owners to Carl Coon; that Carl Coon and Sam L. Coon held out to the world, and to Dement Bros. Company in particular, that Carl Coon was the real owner and proprietor of the farming operations, and particularly that he owned the lease, live stock, crop, and machinery with which he was engaged in farming; that on the faith and credit of such ownership Dement Bros. Company sold to defendant Carl Coon wheat sacks and twine for use in his harvesting operations, of the value of $438.05, for which sum Carl Coon gave to Dement Bros. Company his note, dated July 5, 1916; that Dement Bros. Company furnished Carl Coon other sacks and twine on open account after July 5, 1916, for which there was due it on November 4, 1916, the sum of $49.45. It further alleged that on August 4, 1916, defendant Carl Coon, by agreement in writing, sold to Dement Bros. Company 6,000 bushels of bluestem wheat, 201 sacks of turkey red wheat, and 500 bushels of fortyfold wheat, agreeing to make delivery thereof by September 30, 1916, the same to be all of the vendor's share of the wheat raised on the premises, which contract was by a writing extended as to the time of delivery of the wheat; that, prior to the time the wheat was to be delivered, Carl Coon sold and delivered a part thereof to other parties, and transferred to Sam L. Coon the wheat, for which receipts were by Sam L. Coon delivered to the plaintiff, J. Z. Smith, Dement Bros. Company having purchased the same from Smith and paying therefor the money which the plaintiff herein paid into court; that by reason of the breach of the contract on the part of Carl Coon there is due Dement Bros. Company from Carl Coon the sums mentioned in the plaintiff's complaint as being claimed by it from Carl Coon, to recover which sums its action was then pending against Carl Coon and wife, Eva Coon; that at the time of commencing that action it had no notice or knowledge of the claim on the part of Sam L. Coon to any of the wheat, and that the property stood in the name of Carl Coon. It was further alleged in this answer that Carl Coon and wife, since the commencement of the garnishment action, have been insolvent; that the wheat receipts indorsed by Sam L. Coon to the plaintiff, Smith, were in truth and fact the property of Carl Coon; that, if Sam L. Coon has any interest therein, he is a dormant or silent partner of Carl Coon in his operations, and as such is liable to Dement Bros. Company for the payment of all amounts due it from Carl Coon; that Dement Bros. Company is entitled to receive out of the funds in court the amounts stated in the complaint as claimed by it, expressly disclaiming any right to the balance of the money deposited in court by the plaintiff.

Defendants Sam L. Coon and wife answered the complaint, and replied to the answer of defendant Dement Bros. Company by putting in issue all of the affirmative allegations of the answering defendant, and further pleading their ownership of the wheat evidenced by the certificates indorsed to the plaintiff, and their ownership of the entire fund deposited into court by the plaintiff; also expressly denying that Carl Coon or Eva Coon, his wife, had any title or interest whatsoever therein. No pleading was filed in this action by defendants Carl Coon or Eva Coon, though the former was called and testified as a witness.

The cause was tried without a jury. The court made findings of fact and decreed that Dement Bros. Company was not entitled to any judgment in its favor, but that Sam L. Coon and wife were entitled to have the action dismissed as to Dement Bros. Company, and that they have and recover the entire fund deposited in court by the plaintiff. Dement Bros. Company has appealed.

The position of the appellant is not made clear by the opening brief. On page 9 thereof it says:

'The assignments of error practically involve only the decision of the court with reference to awarding Dement Bros. Company relief by directing the clerk to hold a sufficient amount of the funds in court to pay any judgment that might be awarded by the court in the case of Dement Bros. Company against Carl Coon, and no useful purpose can be served by discussing separately the assignments of error, for the determination of this one matter includes the decision of the whole case.'

It would seem that appellant's theory of the case is that the court could not determine in this proceeding the ownership of the fund which the plaintiff had deposited with the registry of the court, or that in any event it could go no farther than to distribute the balance, after having held sufficient of the fund to satisfy any judgment that might be rendered in its suit against Carl Coon, wherein a writ of garnishment had issued against the plaintiff in this action. We are unable to accede to this view. The sections of the statute governing this class of cases provide:

'Any one having in his possession, or under his control any property or money, or being indebted, where more than one person claims to be the owner of, entitled to,

...