82 Wash. 218 | Wash. | 1914
The respondent, while president and manager of the E. J. Hyde Jewelry Company, a corporation, pledged two diamond rings, along with other personal property, to a broker to secure a loan made by the broker to the corporation. The money procured was used in payment of obligations of the corporation. Subsequently the appellant Clausin was appointed “trustee” of the jewelry company, and while acting in that capacity, redeemed the pledged personal property, including the rings mentioned, with moneys belonging to the jewelry company. Later on, the corporation was declared insolvent in an action brought for that purpose, and the appellant was appointed receiver to wind up its affairs. Pending the receivership, the respondent demanded possession of the rings, claiming them to be her individual property. The receiver refused to turn them over to her, whereupon she brought the present action to recover them. She was successful in the court below, and the receiver appeals.
It is the appellant’s first contention that, since the evidence shows that he redeemed the property while acting in the capacity of trustee, the action should abate because he was not sued in that capacity. But to this there are several answers. In the first place, the record is silent as to the meaning of
The receiver next questions the sufficiency of the evidence to justify the finding that the respondent is the owner of the rings. But on this question, we think the evidence preponderates in her favor. She testifies that one of the rings was purchased by her in another state, from moneys she received from the sale of certain corporation stock owned in her own right. The second one was taken from the stock of the jewelry company, with the consent of its then manager, long prior to the appointment of the receiver, and while the corporation was wholly solvent. There was little or no dispute as to these facts, and we think the court justified in finding that the rings were the property of the respondent.
The receiver next contends that no recovery of the property can be had without a refund of the money paid on their redemption. Had the receiver redeemed the property after his appointment as such, without knowledge of its ownership, the court would, perhaps, in the interests of the creditors of the corporation, subrogate him to the rights of the pledgees
The receiver set up, as a counterclaim, an alleged indebtedness from the respondent to the corporation. On the trial, he offered the books of the corporation as evidence to show such indebtedness. On objection from the other side, the court excluded the evidence, on the ground that the matter pleaded was not a proper subject of counterclaim to the respondent’s action. The objection was properly sustained. The code provides (Bern. & Bal. Code, § 265; P. C. 81 § 287):
“The counterclaim mentioned in the preceding section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action:
“(1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action;
“(2) In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.”
There is no reversible error in the record, and the judgment will stand affirmed.