127 Wash. 484 | Wash. | 1923
Tbe respondent, as administrator of tbe estate of bis deceased father, in tbis action against tbe appellant bank, sets out two causes of action in Ms complaint; in tbe first, alleging that tbe bank bad received, at divers times between August 20, 1920, and February 1, 1922, various deposits from tbe respondent, as administrator, and that, on tbe last named date, $5,124.46 remained on deposit, and that tbe bank bad refused to pay tbis amount, or any part thereof, to tbe respondent. Tbe second cause of action states that, at divers times and places, tbe respondent, as administrator, bad delivered to the appellant certain promissory notes, tbe property of tbe estate, and that tbe bank bad converted them and retained tbe proceeds, amounting to $5,270.30, and refused to pay that amount upon demand.
A great deal of irrelevant matter made its appearance in the trial of tbis case, but in spite of tbis tbe facts are very simple and present tbe following situation: O. Gi. Harding, on November 1, 1919, made a chattel mortgage to tbe appellant, covering a great amount of personal property located on bis farm in Adams county, together with a mortgage upon tbe crop to be grown thereon during tbe year 1920. Tbe mortgage was properly filed on November 8, 1919, and states that it was given to secure tbe sum of $10,000, evidenced by two notes of $5,000 each, dated November 5, 1919, and payable one year after date, with interest at ten per cent per annum. In August, 1920, O. G.
The only question in the case is whether the mortgagee in a chattel mortgage is compelled to foreclose his mortgage, or whether he can agree with the administrator of the estate of the mortgagor that foreclosure is not necessary and provide that the mortgaged property may be sold without foreclosure and
On the second cause of action it appears that the face value of notes for $2,320.30, taken at the sale, was applied upon the mortgage indebtedness, although the testimony shows the real value of those notes was far less than their face value, and thereby the Harding estate has profited much more than it would have were the appellant either called on to account for the value of those notes or to return them. The difference between the $2,320.30 and the $5,270.30, sued for in the second cause of action, is made up of two notes for $1,100 which have been cancelled by the respondent because of respondent’s inability to deliver the property for which they were taken, and one note for $1,800 which the bank held at the time of Harding’s death as collateral under another obligation of the deceased, which obligation the bank now claims is paid and offers .to return to the respondent this collateral note. The trial court was in error in holding that the sale in October, 1920, was not lawful, and in holding that, under Adler v. Scandinavian-American Bank, 116 Wash.
The judgment is reversed, with directions to enter judgment in favor of the appellant upon the respondent’s first cause of action, and in favor of the respondent upon his second cause of action for the return of the three notes, one for $600, known as the Appel note, one for $550, known as the Trevasser note, and one for $1,800, known as the Fitzpatrick note.