Richardson v. Seattle-First National Bank , 38 Wash. 2d 314 ( 1951 )

Mallery, J.

— The plaintiff, Eva Richardson, was the owner of a Chevrolet car. Her certificate of title, as registered and legal owner, was issued by the director of licenses of the state of Washington on October 1, 1948. She advertised the car for sale. A man contacted her by telephone and gave his name as Thornton and represented himself to be an agent of the Central Oldsmobile Company of Seattle. He made inquiries about the car and agreed to pay $2,345 for it. An appointment was made and the plaintiff met the man on the afternoon of October 20, 1948. She endorsed, in blank, her certificate of title, as registered owner, and gave it to him. He handed her a check in the amount agreed upon, which had the name of Central Oldsmobile Company upon it.

Plaintiff deposited the check for collection with her bank and learned on October 25, 1948, that the check was a forgery, and the man was an imposter. In the meantime, the man offered the Chevrolet automobile for sale to Eckern’s Automotive, Inc., an automobile dealer in Bellevue, Washington, giving the name of George Carroll. Mr. Eckern, president of the company noticed that there was no signature on the line for the legal owner and told the man he would not accept the instrument without such a signature, whereupon, the man took the certificate of title away, forged Miss Richardson’s name as legal owner, and returned with it.

Thereupon, Eckern paid the man, took the car and the certificate of title, signed by Miss Richardson as registered owner and with her signature as legal owner forged thereon. Thereafter, Eckern’s Automotive, Inc., sold the car to the defendants Olsen, and purported to convey title thereto by filling in Olsen’s name on the vendee line in Miss Richardson’s certificate of title.

Plaintiff brought this action to replevin the car, and from a judgment in her favor the defendants appeal.

Eckern’s Automotive, Inc., is not made a party to this action. However, since one of the issues made by the parties, in this case, was as to their comparative innocence, the appellants will be treated as being in the shoes of Eckern’s Automotive, Inc., which guaranteed appellants’ title to the car. See Angola State Bank v. State ex rel. Sanders, 222 Ind. 244, 52 N. E. (2d) 620.

At common law, except in the market overt, a thief could convey no title to his vendee, but the title of an innocent vendee of goods previously obtained by fraud was indefeasible. Concerning the latter situation this court in Hutson v. Walker, 37 Wn. (2d) 12, 221 P. (2d) 506, quoted with approval from Linn v. Reid, 114 Wash. 609, 196 Pac. 13, as follows:

“ ‘It is but the enforcement of the old and familiar rule that, of two innocent persons one of whom must suffer by the fraud of a third person, he who has put it in the power of such third person to commit the fraud must be the sufferrer. The basis of protection to the bona fide purchaser, in cases such as the present one, is the voluntary act of the original vendor in parting with both the title to and possession of the property. Unless this difference in the manner in which property is acquired from its lawful owner is kept in mind- — that is, whether by trespass, or by the voluntary act of the lawful owner — a misunderstanding of the well-reasoned cases may follow.’ ”

This state of the common law was modified by legislative enactment by the passage of Rem. Rev. Stat., § 2129 [P.P.C. § 112-97], which provided, in part:

“All property obtained by larceny, robbery, or burglary, shall be restored to the owner; and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his rights to such property; ...”

In Frye & Co. v. Boltman, 182 Wash. 447, 47 P. (2d) 839, we held that the above statute encompassed all the forms of larceny then extant, and, specifically, that form of larceny committed in obtaining property by false impersonation. The statute, then, had the effect of increasing the field in which an innocent vendee’s title was defeasible. There is, of course, no question but that the common law must give way within the scope of the statute.

In other words, the doctrine of comparative innocence of the parties can only be invoked where the owner parted with his title under circumstances which would not constitute larceny, as it was defined at the time of the enactment of Rem. Rev. Stat., § 2129.

It follows that, even when the vendee is an innocent party, if the goods were obtained from the true owner by false impersonation, as in the instant case, the statute is applicable and must prevail.

The parties hereto have given considerable attention to the question of estoppel and, particularly, as to circumstances under which it must be pleaded. We find it unnecessary to discuss this question, because, in the light of what we have said concerning the innocence of a vendee, estoppel was not available whether pleaded or not. Upon this point the case of Hutson v. Walker, supra, is overruled to the extent that it is in conflict herewith.

The judgment is affirmed.

SCHWELLENBACH, C. J., BEALS, ROBINSON, HlLL, GRADY, Hamley, and Finley, JJ., concur.