No. 6721 | Wash. | Sep 28, 1907
This action, which was brought by Jacob Andrews against Joseph Hoeslich and the Uncle Joe Diamond Broker, a corporation, to recover possession of a diamond ring, has heretofore been before this court on an appeal prosecuted by the defendant corporation, and a statement of the pleadings and the facts involved may be found in the opinion then filed. Andrews v. Uncle Joe Diamond Broker, 44 Wash. 668" court="Wash." date_filed="1906-12-12" href="https://app.midpage.ai/document/andrews-v-uncle-joe-diamond-broker-4727653?utm_source=webapp" opinion_id="4727653">44 Wash. 668, 87 Pac. 947. At the former trial the defendant, Joseph Hoeslich, was not in court. He was served afterwards, and on July 28, 1906, served his answer, in which, after denying allegations of the complaint, he affirmatively pleaded, that on August 27, 1904, the plaintiff left the ring with him as a pawn to secure a loan of $50; that he issued a pawn ticket to the plaintiff; that thereafter the plaintiff sold and delivered the pawn ticket to him for the sum of $5 in addition to the $50 loan, and that the plaintiff then ceased to have any further interest in the ring. This affirmative answer being denied, the cause was tried on the issues thus joined between the plaintiff and the defendant Joseph Hoeslich. The trial court made substantially the same findings as those made on the former trial, sustaining all the allegations of the complaint, and further found that, within a week or so after the ring had been pawned, the defendant Joseph Hoeslich sold it without the knowledge or consent of the plaintiff, that in this action the plaintiff tendered to the defendant, and paid into court for his use and benefit, the sum of $75, which has ever since remained in the registry of the court, and that the ring was of the reasonable value of $216. Upon these
The appellant’s first assignment of error is based upon his exceptions to the findings of fact. We have carefully examined the evidence and conclude that the findings are supported by its preponderance. The appellant raises the same question based upon the statute of frauds that was urged by the defendant corporation on the former appeal, but we now adhere to our views then expressed.
The appellant further contends that, as he was not in possession of the ring at the time of the commencement of this action of replevin, the respondent cannot recover. The common law rule undoubtedly is that an action of replevin cannot be maintained against a defendant who is not in possession at the time the demand is made or the suit is commenced. This ■doctrine was announced in Dow v. Dempsey, 21 Wash. 86" court="Wash." date_filed="1899-04-22" href="https://app.midpage.ai/document/dow-v-dempsey-4724551?utm_source=webapp" opinion_id="4724551">21 Wash. 86. 57 Pac. 355. In that case, however, it affirmatively appeared that the plaintiff instituted her action after she had learned and positively knew that the defendant, as sheriff of Spokane county, had parted with the goods, by delivering them to a receiver, in obedience to an order of court. Here the court did not find, nor is it suggested by the evidence, that the respondent knew at any time prior to the commencement of the action that the appellant had sold the ring or parted with its possession. Under such circumstances an exception must be recognized to the rule in Dow v. Dempsey, supra.
Where, as in this case, property has actually been in appellant’s possession and has been wrongfully transferred by
In the last mentioned case the supreme court of Arkansas said:
“Actual possession of the property by defendant is not always essential, at the time of the writ. That would be a very inconvenient rule, which would enable one who had wrongfully taken or detained property from the owner to refuse to deliver and hold to the last moment before the writ, and then evade a suit by a transfer of possession. His successor might do the same; and his after him; and so on toties quoties, until the costs of writs to the owner would consume-the property. When one is wrongfully detaining property and refuses it on demand, he is liable to the action, although it may not remain in his possession when suit is brought.”
In Sinnott v. Feiock, 165 N.Y. 444" court="NY" date_filed="1901-02-01" href="https://app.midpage.ai/document/sinnott-v--feiock-3587931?utm_source=webapp" opinion_id="3587931">165 N. Y. 444, 59 N. E. 265, the court of appeals, in a well-considered case, held that a defendant is
The appellant further contends that the respondent did not keep his tender good. The complaint was filed on January 27, 1906, but the respondent did not deposit the $75 in the registry of the court until March 21, 1906, and the appellant now insists that the tender was not kept good as the money was not deposited when the complaint was filed. Under the
“Respondent’s right to maintain the suit, and obtain the judgment, depended upon whether he had tendered the $75, and had at all times kept the tender good. Appellant argues, with apparent seriousness, that the judgment is against it for the return of the ring or its value, and that respondent retains the $75. Such a result would be manifestly wrong, and the condition of the record is such that we cannot tell whether the. tender has been kept good so that it has at all times been available to appellant or not.” Andrews v. Uncle Joe Diamond Broker, 44 Wash. 668" court="Wash." date_filed="1906-12-12" href="https://app.midpage.ai/document/andrews-v-uncle-joe-diamond-broker-4727653?utm_source=webapp" opinion_id="4727653">44 Wash. 668, 87 Pac. 947.
Notwithstanding this language, we do not wish to be understood as holding that, under the facts of this case, the respondent was under any legal obligation to bring the tender into court with the filing of his complaint, and keep it there at all times until final judgment. It may be seriously questioned whether appellant’s hen on the ring was not discharged by the tender made prior to the suit. Jones on Pledges and Collateral Secui'ities (2d ed.), § 542; Helphrey v. Strobach, 13 Wash. 128" court="Wash." date_filed="1895-11-26" href="https://app.midpage.ai/document/helphrey-v-strobach-4722716?utm_source=webapp" opinion_id="4722716">13 Wash. 128, 42 Pac. 537. If his lien was then discharged it might be further questioned whether it would have been necessary for the respondent to keep his tender good at the time of filing his complaint, and at all times there
On the former appeal a reversal Avas granted because it neither appeared that the $75 remained in the registry of the court at the time of final judgment, nor that the final judgment protected the appellant corporation in all of its rights. The record here shows beyond question that before service of summons was made upon the present appellant, Joseph Hoeslich, the $75 tender Avas deposited in the registry of the court, that it has since remained there, and that the trial court has in the final judgment fully protected the appellant. This being true, he is now in no position to complain of the respondent’s failure to deposit the $75 at the time he filed his complaint. The evidence noAv before us establishes the fact that the respondent has fully complied with every reasonable requirement that could be made of him in the matter of tender.
The judgment is affirmed.
Hadley, C. J., Root, Fullerton, Mount, Dunbar, and Rudkin, JJ., concur.