Spokane Merchants' Ass'n v. Parry

• Decision Date: 22 September 1910
• Citation: 60 Wash. 204,110 P. 991
• Court: Washington Supreme Court
• Parties: SPOKANE MERCHANTS' ASS'N v. PARRY et ux.

110 P. 991

60 Wash. 204

SPOKANE MERCHANTS' ASS'N v. PARRY et ux.

Supreme Court of Washington

September 22, 1910

Department 1. Appeal from Superior Court, Okanogan County; E. W. Taylor Judge.

Action by the Spokane Merchants' Association against W. W. Parry and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

Perry D. Smith, for appellants.

Warren W. Tolman, for respondent.

FULLERTON J.

For some time prior to November 26, 1909, the appellant, W. W Parry owned and operated two general stores in Okanogan county; the one being located at Molson and the other at Tonasket. He also owned certain real property situated in the same county. On the date named he was indebted to divers wholesale dealers who had sold him goods and merchandise in a sum exceeding $65,000, and was insolvent. To secure an equal division of his property among his creditors, he, together with his wife, executed and delivered to the respondent two mortgages; the one covering his real property and the other his stocks of merchandise, and each of the mortgages being conditioned for the payment of the indebtedness at times specified and set forth in the mortgage. At the time of the execution and delivery of the mortgages, the parties entered into a written agreement by the terms of which the appellants turned over to the respondent the general stores and the merchandise covered by the mortgages with power to conduct and manage them during the life of the mortgages in such manner as it should deem most beneficial to the creditors both of the appellants agreeing to render it such assistance as lay within their power. It was further provided that the proceeds of the business, after deducting the expenses of operation, should be paid to the creditors of W. W. Parry; such payments to be made whenever the amount on hand equaled 10 per cent. of the claims.

The respondent conducted the business under the agreement for something over a year, when the store at Tonasket burned. The business was continued at the other store until August 14 1909, when the respondent began the present action to foreclose the mortgages, alleging that it was no longer profitable to continue the business. In its complaint the respondent alleged that the debts of the appellants at the time of the mortgages amounted to the sum of $69,788.77; that it had realized from the property turned over to it $24,637.90; that it had incurred expenses amounting to the sum of $3,602.90; and that the indebtedness remaining unpaid for which the mortgages stood as security amounted to the sum of $50,223.50. An answer was filed, putting in issue the allegations of the complaint as to the amount of the indebtedness, the expenses incurred, and the amount realized, and averring affirmatively that the respondent had realized more than $90,000 from the assets turned over to it. This affirmative allegation was put in issue by a reply in the form of a denial. On the trial the court found that the respondent had fully accounted for all moneys received by it, and that there was a balance due on the indebtedness which the mortgages stood to secure of $41,075.90, and entered a judgment of...