95 P.2d 786 | Wash. | 1939
A.R. Townsend will be referred to as though he were the only appellant.
On or about July 26, 1938, the appellant purchased from Feutz, Inc., a corporation dealing in automobiles, a used car, under, as already stated, a contract of conditional sale. The contract was assigned by Feutz, Inc., the vendor, to respondent, the Standard Finance Company, a corporation. Thereafter, the appellant found himself unable to meet the payments provided for by the contract and offered to surrender the automobile to the respondent, and this offer was refused. Sometime later, the respondent instituted this action, having elected to declare all of the payments due. The prayer of the complaint was for a money judgment, and that the automobile be sold and the proceeds applied to the satisfaction of the respondent's claim. In the complaint, there was a statement that "plaintiff does not by this action convey title to the above described property."
After the action was begun by the filing of the complaint with the clerk of the superior court, an attachment was issued, and by the sheriff levied, upon the automobile. It was subsequently sold under the attachment for six hundred and fifty dollars.
[1] The question here is whether the respondent had a right to attach the automobile. This, in turn, depends upon whether the title thereto had passed definitely and irrevocably to the appellant. Under a conditional sale contract, the absolute title to the property covered thereby remains in the vendor. Lahn Simmons v. Matzen Woolen Mills,
When the vendor elects to bring an action for a money judgment, the commencement of the action to enforce that remedy constitutes an election which is not thereafter revocable. Eilers MusicHouse v. Douglass,
[2] The appellant, however, says that the respondent has no right to avail itself of this, because the complaint recited, as above stated, that the title to the property was reserved.
We recognize the rule that a pleading is construed most strongly against the pleader, and that an express admission in a pleading should control and exclude testimony tending to show the contrary, until the inconsistency was removed or obviated by an amendment. Irwin v. Buffalo Pitts Co.,
In the case of Kimble Motor Car Co. v. Androw,
"We do not lose sight of the attempted reservation of title to the automobile made in the recitals of appellant's claim above quoted. Such recitals did not in any sense constitute a legal proceeding seeking recovery of the property; and we think must be now considered of no effect as against the election to seek payment of the purchase price as a debt owing to appellant by the estate."
The judgment will be affirmed.
BLAKE, C.J., MILLARD, ROBINSON, and SIMPSON, JJ., concur. *278