18 Wash. 520 | Wash. | 1898
The opinion of the court was delivered by
The appellants sued upon a promissory note. The respondents answered, denying the responsibility of the firm in the execution of the note, and set up-certain facts constituting a counter-claim, to-wit: that the defendants were indebted to them for a balance due upon a sale of sheep made by them to the defendants; that the defendants had given to the plaintiffs a bill of sale of 1900 head of sheep in August, 1893, said sheep then being at Trevor, Wisconsin; that the plaintiffs took possession of said sheep thereunder as security for the balance due them on the note; that the sheep were to be put on the market and sold, and plaintiffs were to retain from the proceeds the amount of their claim and pay the balance to defendants; alleged negligence on the part of the plaintiffs in selling said sheep, failure to care for them properly while they were in the possession of the plaintiffs; that by reason of the carelessness, negligence and wrongful acts of the plain
The first case cited by the appellant, Durant v. Einstein, 35 How. Pr. 223, is a case of this kind. This was a sale of stock which was placed in the hands of the pledgees as collateral security, below the market price, and there was no
The citation from Jones on Pledges, § 735, while asserting the doctrine of the case just cited, concludes:
“It must appear that there was an intent to injure the pledgor, or that there was such recklessness shown, in the mode or time of selling, that such intent might be inferred.”
We think the answer in this case alleges a state of facts from which this intent might be inferred.
In Whitin v. Paul, 13 R. I. 40, it was held that while the pledgee of certain promissory notes was not bound to forecast the market for the pledgor yet he was bound to use reasonable and ordinary diligence in realizing their value, but was not bound to exercise extraordinary care.
Schouler on Bailments and Carriers, in section 206, condenses the rule into the following expression.
“The true idea to be conveyed is, that the parties must be presumed to have contracted for applying the collateral in the manner which best consists with the rights of both,”
and the authorities amply sustain this announcement.
We think it plainly appears from the allegations of the answer in this case that the plaintiffs did not apply the collateral in the manner which best consisted with the rights of the defendants, which could have been done, without interfering with any rights of their own.
The second assignment, that the court erred in permit
Several errors are alleged in relation to the instructions of the jury, but the record discloses the fact that no exceptions were taken to the instructions given or to the refusal of the court to give instructions asked by the appellants. They will therefore not be considered by this court.
The judgment will be affirmed.
Scott, O. J., and Anders, Gordon and Reavis, JJ., concur.