117 Wash. 283 | Wash. | 1921
The primary purpose of this action was to recover a money judgment and to foreclose a chattel lien. After the action had been instituted, upon the motion of the defendants Henry W. Sumner and Albert E. Parker, copartners doing business under the firm name of H. W. Sumner Company, the Union National Bank was made a party, and the issues made between
Sumner K. Prescott Company is a corporation organized under the laws of this state. The Franklin Tool Works is also a corporation organized under the laws of this state. The Union National Bank is a corporation engaged in the banking business. As already stated, Henry W. Sumner and Albert E. Parker were copartners doing business under the name of H. W. Sumner Company. The Prescott company were engaged in the business of manufacturing machinery, castings, and so forth. The Franklin Tool Works was engaged in the business of constructing engines. The Sumner company was engaged in the business of having engines manufactured for sale. On the 15th day of January, 1919, the Sumner company entered into a written contract with the tool works company whereby the latter company agreed to build and deliver on board the cars, packed for export, two heavy marine oil burning engines. On March 10, 1919, the tool works company entered into a contract with Sumner K. Prescott Company whereby the latter company agreed to furnish iron castings necessary to the construction of the engines. After these contracts were entered into, the parties entered upon their performance. The Union National Bank was loaning money to the tool works company in order that it might carry on its enterprise, and took from that company a written assignment of all the monies due under the contract as the payments should be made from time to time. This assignment was accepted by the Sumner company. The contract
The first question to be determined is, was the title to the engines, during the time they were being constructed under the contract between the Sumner company and the tool works company, in the former or in the latter. It is the contention of the appellant that the title was in the Sumner company. The contract pro
“The question of the time when the title will pass to goods which have been ordered to be manufactured is involved in some little conflict of decision, though the decided tendency of the authorities in the United States is clear. Under a contract for the manufacture of an article, as for the building of a ship or the construction of any other chattel, not existing in specie at the time of making the contract, it is the general rule that no title vests in the purchaser during the progress of the work, nor until the chattel is finished and delivered, or, at least, is ready for delivery, and, by tender or other equivalent act, is appropriated to the buyer.”
This court, in North Pacific Lumber & Mfg. Co. v. Kerron, 5 Wash. 214, 31 Pac. 595, has adopted substantially the same rule. The appellant seeks to take the present case out of the rule by reason of the fact that the Sumner company, under the contract, had a right to inspect all material before installation and pass upon all workmanship, and the further fact that the contract provided for payments as the work pro-t gressed. The fact that the Sumner company had the
The title being in the tool works company, the appellant further contends that the Prescott company had no right to maintain an action to foreclose the liens, because it is claimed that all rights under the castings contract were transferred by assignment or novation from the Prescott company to the American Foundry Company, and if any right to a lien exists it is in the latter company. The Prescott company and the American Foundry Company were closely affiliated. Sumner K. Prescott owned all the stock in the Prescott com-’
“Every person, firm or corporation who shall have performed labor or furnished material in the construction or repair of any chattel at the request of its owner, shall have a lien upon such chattel for such labor performed or material furnished, notwithstanding the fact that such chattel be surrendered to the owner thereof. ”
The statute, as we view it, is broader than the common law and gives the right to one furnishing material to a lien, even though such material be not in possession of the manufacturer. Under the statute, the Prescott company, even though it did not have possession of the engines, had a lien for the balance owing to it.
It is next contended that the notice of the claim of lien was not filed within the time required by law. Section 2 of the lien statute, Laws of 1917, p. 229, provides that, in order to make such lien effectual, the lien claimants shall, “within 60 days from the date of delivery of such chattel to the owner,” file in the office of the county auditor a lien notice. The last delivery of castings under the contract was made by the Prescott company on July 19, 1919, and the lien notice was filed on September 15, 1919, which was within the sixty-day period. The appellant argues, however, that there could be no lien under the terms of the statute, if the tool works company were the owner, unless the lien notice was filed “within 60 days after the construction of the engines commenced. ’ ’ The notice of lien was filed within the time required by law.
The other matter on which a reduction was claimed was that of a trade acceptance. On June 16, 1919, the American Foundry Company drew a trade acceptance for $4,487, which was presented to the Franklin Tool Works and accepted by that company and made payable at the Georgetown branch of the Union National Bank. This was deposited in the Seattle National Bank on July 3, 1919, and credit was given therefor. It was payable twenty days after date. The due date was July 7, the preceding day being a Sunday. When the trade acceptance reached the Georgetown branch of the Union National Bank there were not sufficient funds of the tool works company to cover it, and it was returned to the Seattle National Bank and that bank charged back to the depositor, with the consent and approval of Mr. Prescott, the amount thereof. Prescott also testified that the trade acceptance was delivered to the Seattle National Bank for collection. Its right to charge back cannot be doubted. The trade acceptance, not having been paid, did not operate as a payment of the debt nor defeat the right of foreclosure. 27
We will now take up the consideration of the case between the Sumner company and the Union National Bank. By its cross-complaint, the Sumner company sought to recover against the hank monies which it had paid thereto and which it is claimed were not applied upon the indebtedness of the tool works company which was created in the manufacture of the engines. It is also claimed that it was the duty of the bank, before presenting the payrolls to the Sumner company, to see that the payrolls had been paid. The bank did not take an assignment of the contract, but only “all monies due or to become due under the terms ’ ’ thereof. The assignment of money due or to become due under an executory contract is not an assignment of the contract and the assignee is not bound to perform it. Lunt v. Lorscheider, 285 Ill. 589, 121 N. E. 237; Butler v. San Francisco Gas and Elec. Co., 168 Cal. 32, 141 Pac. 818; National Surety Co. v. Maag, 43 Ind. App. 16, 86 N. E. 862. Under the assignment, the bank owed no duty to the Sumner company to see that the money which was received from that company was properly applied upon the payroll by the tool works company. The bank took the assignment of the monies due on the contract merely as security for the advancement that it was making the tool works company.
It is further claimed that the bank applied certain of the money upon the indebtedness which the Franklin company owed it other than that contracted by the latter company in the manufacture of the engines in question. Even if this were the fact, the Sumner company would not have a right to recover from the bank. That company paid the money voluntarily, and the case stood very much as though the money had been paid by the Sumner company to the tool works company and that
“The case stands just as if the money had been paid by the plaintiffs to Abbott, and by Abbott to these defendants, in which case there could be no doubt that, while the plaintiffs could recover back the amount from Abbott, neither Abbott nor the plaintiffs could recover the amount from these defendants. The fact that the money, instead of being paid by the plaintiffs to Abbott, and by Abbott to these defendants, was paid directly by the plaintiffs to these defendants, does not make any difference in the rights of the parties. The two forms do not differ in substance. In either case, Abbott alone is liable to the plaintiffs, and these defendants hold no money which ex aequo et bono they are bound to return either to Abbott or to the plaintiffs.”
It is also claimed that recovery should be against the bank because the Georgetown branch thereof, at which the trade acceptance was made payable, did not promptly return it to the Seattle National Bank. The trade acceptance was received by the Georgetown branch one day after its due date, or the 8th of July, and was returned on the twelfth. "What the effect of holding the trade acceptance for the time mentioned would have been if a party to the instrument were suing, it is not necessary here to determine. The trade acceptance was drawn by the American Foundry Company and accepted by the Franklin Tool Works. The Sumner company was not a party to it and, so far as the bank was concerned, was not known in the transaction. The bank owed no duty to the Sumner company arising out
“The first element of our definition is a duty. If there is no duty, there can be no negligence. If the defendant owed a duty, hut did not owe it to the plaintiff, the action will not fie. And there can he no duty to do any act which one has no legal right to do. The plaintiff must state and prove facts sufficient to show what the duty is, and that the defendant owes it to him. ’ ’
There are two or three minor questions discussed in the briefs and which have not been mentioned in this opinion. They have been considered and we do not deem them to possess substantial merit. To discuss them here in detail would seem to unnecessarily prolong this opinion.
The judgment will be affirmed.
Parker, C. J., Tolman, Mitchell, and Holcomb, JJ., concur.