Wise v. Vaughan

• Decision Date: 27 January 1931
• Docket Number: 22606.
• Citation: 295 P. 126,160 Wash. 505
• Court: Washington Supreme Court
• Parties: WISE et al. v. VAUGHAN et al.

295 P. 126

160 Wash. 505

WISE et al. v. VAUGHAN et al.

No. 22606.

Supreme Court of Washington

January 27, 1931

Department 1.

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Thomas C. Wise and wife against George R. Vaughan, his wife, and the National Surety Company, a corporation.From a judgment against defendants Vaughan in an unsatisfactory amount and a judgment of dismissal as to defendant corporation, plaintiffs appeal.

Affirmed.

H. W Lueders and O. O. McLane, both of Tacoma, for appellants.

Robert B. Abel, of Tacoma, for respondents.

MAIN J.

This action is based upon an attachment bond.In the complaint there are two causes of action separately stated; one was for the loss or misappropriation of certain goods, wares, and merchandise, and the other for expenses incident to an attachment which, it is claimed, was wrongfully sued out.The defendantNational Surety Company in its answer affirmatively pleaded that the loss of the goods, if any, occurred while they were in the possession of the defendantGeorge R. Vaughan under a contract which he had made with the plaintiffs.The plaintiffs in their reply admitted the execution of the contract, and alleged affirmatively that Vaughan failed to perform his part thereof, and that as a result the plaintiffs were damaged in the sum sought to be recovered.The defendantsGeorge Vaughan and wife defaulted and judgment was entered against them in the sum of $412 with interest, costs, and attorney's fee.The case against the surety company was tried to the court without a jury, and resulted in a judgment dismissing the action at the conclusion of the plaintiffs' evidence.The plaintiffs appeal from both judgments.

The facts essential to be stated are these: The respondentGeorge Vaughan(who will be referred to as though he were the only partyrespondent aside from the surety company) operated a clothes-pressing establishment in the city of Tacoma, at 1128 Commerce street, and had in his possession in the same room a small stock of men's furnishing goods, consisting of hats, caps, overcoats, suits, and fixtures which were the property of the appellants.Vaughan refused to surrender the stock of goods to the appellants upon demand, claiming a right to hold them for an indebtedness owed to him by the appellants.August 28, 1928, the appellants brought an action in replevin to recover the possession of the merchandise and fixtures.A writ of replevin was placed in the hands of the sheriff of Pierce county and served.

September 4, 1928, one John H. Binns, in an action in which he was plaintiff and the appellants Wise were defendants, caused an attachment to be issued and levied upon the merchandise and fixtures.After the Binns attachment had been levied, Vaughan caused an attachment to be issued and levied upon the same property to secure the indebtedness owed to him by the appellants.Vaughan was placed in possession of the property by the sheriff as custodian thereof.The appellants moved that the attachment caused to be issued by Vaughan (we are not now concerned with the Binns attachment) be set aside, and, after a hearing upon the motion, the court declined to vacate and set aside the attachment.

The principal case of Wise v. Vaughan in replevin was tried November 1 and 2, 1928.After the trial of the case and before judgment was entered, the appellants entered into a contract with Vaughan by which the property was to remain in his possession, and he was to sell the same, retaining a commission of 25 per cent. on the gross sales.In this contract it was expressly recited that the appellants Mr. and Mrs. Wise were indebted to Vaughan for money loaned to them June 11, 1928, in the sum of $370.The judgments above referred to were not entered until some time later.In the judgment against Vaughan in the principal action, Mr. and Mrs. Wise were awarded the sum of $1 as damages, and it was provided that, in case the property was not delivered to the plaintiffs in that action, they would be entitled to a...