Watkins v. Siler Logging Co.

• Decision Date: 08 August 1941
• Docket Number: 28292.
• Citation: 116 P.2d 315,9 Wn.2d 703
• Parties: WATKINS v. SILER LOGGING CO. et al.
• Court: Washington Supreme Court

116 P.2d 315

9 Wn.2d 703

WATKINS v. SILER LOGGING CO. et al.

No. 28292.

Supreme Court of Washington

August 8, 1941

Department 2.

Action for conversion by Robert M. Watkins, as trustee in bankruptcy for the Great Northern Power Company, a corporation, against the Siler Logging Company, a corporation, and another wherein defendants filed a cross-complaint seeking to bring in an additional party defendant. The cross-complaint was dismissed, and, from a judgment for the plaintiff, defendants appeal and plaintiff filed a motion to dismiss the appeal or in the alternative for an order declining to pass upon the merits of the appeal.

Motion denied and judgment reversed and cause remanded.

Appeal from Superior Court, King County; Hon Calvin S. Hall, judge.

W. E Heidinger, of Tacoma, for appellants.

Gordon McGauvran and James R. Chambers, both of Seattle, for respondent.

BEALS Justice.

Prior to 1932, Great Northern Power Company, a Washington corporation, owned a tract of real estate in Snohomish county, upon which was located a stand of timber. March 31, 1932, the power company entered into a contract with H. S. Boyden, whereby Boyden acquired the right to cut and remove the timber. The contract provided that Boyden should remove the timber within two years from the date of the contract, and that 'all timber remaining upon said premises at the expiration of said two year period shall be and remain the property of' the power company. The power company thereafter assigned its interest in the contract to Northwestern Securities Corporation, the assignee being nowise concerned with this action.

By its terms, the contract expired March 31, 1934, but notwithstanding that fact, Boyden continued to cut and remove timber from the property, dumping some of the logs into the Snohomish river, where they were caught, sorted and rafted by the Snohomish River Boom Company (hereinafter referred to as the boom company), most of the logs, however, having been placed in rafts belonging to Siler Logging Company (hereinafter referred to as Siler), which sold the logs, remitting the proceeds to the boom company, which in turn delivered the money to Boyden, together with the proceeds of other sales made on his behalf.

The money received from the sale of 62,210 board feet of logs was disposed of in an interpleader action, as hereinafter set forth.

Great Northern Power Company having been later declared a bankrupt, Robert M. Watkins was appointed its trustee, and as such instituted this action against Siler Logging Company and Snohomish River Boom Company, as defendants, for the purpose of recovering judgment on account of logs alleged to have been owned by the bankrupt and converted by the defendants.

While Robert M. Watkins, as trustee for the bankrupt, is plaintiff in this action, for convenience of reference we shall refer to the power company as the plaintiff.

The action was tried upon the third amended complaint and the separate answers of the defendants. In this complaint it was alleged that subsequent to April 1, 1934, Boyden unlawfully and without right removed from the power company's land, and dumped into the Snohomish river, 361,440 feet of logs, which were rafted by the boom company; that Boyden procured the defendants to jointly sell the logs to third parties; and that the logs were thereby converted by defendants and sold by them for the sum of $4,519.82, which was the market value of the logs. Allowing a credit against this amount, in the sum of $616.80, the complaint prayed for judgment against defendants in the sum of $3,903.02. Boyden was not named as a party defendant to the action, the complaint alleging that plaintiff had elected to sue the defendants as joint tort feasors. The complaint contained an allegation of damage to plaintiff, as the result of defendants' acts, stating a cause of action ex delicto.

Defendants filed separate answers, denying many of the material allegations of the complaint, and particularly that the power company had been damaged in any sum by their actions. By way of affirmative defenses, defendants pleaded that many of the logs referred to in the complaint were handled by defendants for the Port Gardner Log Patrol, and not for Boyden; that other logs were strays, picked up by the boom company; and that for others the power company had already been paid. It was pleaded that Boyden and the defendants had acted in entire good faith; that Boyden had enjoyed the right to remove and sell the logs; that the logs had been paid for, to Boyden or his order; that the logs were without market value; and that the power company had been fully compensated for the removal of all of its logs. The answers also pleaded an equitable estoppel against the bringing of the action, and a judgment theretofore entered by the superior court of Snohomish county in cause No. 32983 was pleaded as res judicata.

Defendants sought, by way of a cross-complaint, to make H. S. Boyden an additional party defendant to the action. On plaintiff's motion, this cross-complaint was stricken by the court, to which ruling defendants excepted.

Replies to the affirmative defenses contained in the answers having been filed, defendants served a demand for trial of the action to a jury, paying the statutory jury fee. Upon plaintiff's motion, an order was entered striking the demand for a jury trial, and directing that the cause be tried to the court, to which ruling defendants excepted. Trial of the action resulted in the entry of findings of fact and conclusions of law in favor of the plaintiff, followed by the entry of judgment against defendants, jointly and separately, in the sum of $3,401.50, principal, and $974.90 interest, and against Snohomish River Boom Company in the sum of $411.75, principal, and $123.62, interest, from which judgment defendants have appealed.

Appellants make thirty-five assignments of error, contending the trial court erred in striking their demand for a jury trial; in denying them the right to bring in H. S. Boyden as an additional defendant; in denying their motion in arrest of judgment, or in the alternative for a new trial; in rejecting testimony offered by appellants; in holding that the judgment entered by the superior court for Snohomish county in cause No. 33523 was res judicata as to appellants, and in refusing to hold that the judgment of the same superior court in cause No. 32983 was res judicata as to respondent. Appellants also assign error upon the refusal of the trial court to hold that respondent had waived its right to maintain any tort action as against H. S. Boyden, and was therefore estopped from maintaining this action against appellants; on the refusal of the court to hold that an equitable estoppel operated against respondent; upon the refusal of the court to hold that respondent, having pleaded a cause of action ex contractu in the first three complaints filed herein, was barred from maintaining against appellants an action ex delicto on its third amended complaint herein; and that it should have been held that respondent, by accepting the proceeds of 62,210 feet of logs, being the subject matter of cause No. 33349 Before the superior court for Snohomish county, is estopped from maintaining an action ex delicto against appellants. Appellants also assign error upon the making of many findings of fact and conclusions of law, and upon the refusal of the trial court to rule that for various reasons respondent was estopped from maintaining this action, and that the logs had no market value, or that respondent was not damaged in any sum by appellants' acts. Appellants contend that the trial court awarded respondent more than compensatory damages, and erred in so doing, and that the trial court erred in entering judgment against appellants, and in refusing to dismiss the action.

Respondent's brief opens with a motion to dismiss the appeal, or in the alternative, for an order of this court declining to pass upon the merits of the appeal, for the reason that the trial court made full and complete findings of fact and conclusions of law, and appellants failed to request the court to make any other or different findings, or to propose any findings or conclusions for the court's signature.

Appellants' assignments of error are all based either upon findings which the court made or rulings of the court upon questions of law, as the same were argued during the trial. Appellants are not contending that the trial court erred in failing to make any particular affirmative finding of fact. On appeal an appellant may contest the legal propriety or sufficiency of such findings of fact, conclusions of law and judgment as the court made and entered. In the case at bar, the appeal is properly Before us, and respondent's motions are denied.

After the issues were made up, appellants demanded that the action be tried to a jury. Respondent moved for an order striking the demand for a jury trial, and for an order directing that the case be tried without a jury, apparently for the reason, as argued by respondent, that appellants' defenses were equitable in their nature, and that the issues to be tried were equitable. The motion was argued to a judge presiding over a different department of the court than that to which the cause was later assigned for trial, and respondent's motion to strike the demand for jury trial was granted, an order being entered that the action should be tried as a non-jury case. To the entry of this order, appellants excepted, error being here assigned on the court's ruling.

Article I, § 21, of the constitution of this state provides that the right of trial by jury shall remain inviolate. This is a valuable right, jealously guarded by the courts. It may be assumed that res...