American Packing Co. v. Luketa , 120 Wash. 278 ( 1922 )

Per Curiam.

—This, it is to he hoped, is the last chapter in litigation which has been before this court on several occasions, upon two of which opinions have been written, which will be found in American Packing Co. v. Luketa, 98 Wash. 6, 167 Pac. 87, and American Packing Co. v. Luketa, 115 Wash. 1, 196 Pac. 1, reference to which is here made for an understanding of the facts involved.

In compliance with the direction contained in the last opinion, the trial court proceeded to take testimony to determine the final judgment to be entered, and decided that the defendants were entitled to a judgment of $7,240, that amount being made up of $3,800 as the value of the boat in controversy, and $3,440, the value of its use for the time it was kept out of defendants’ possession. From this judgment both parties have appealed, the defendants claiming that the judgment was not large enough, and that the value of the boat was in excess of $3,800, and that the usable value of it was more than the amount found by the trial court, and also that that court erred in finding the boat was lost to all parties by the lien foreclosure sale of November 1, 1918. The plaintiff appeals for the reason that it believes that the judgment is excessive, and that the usable value of the boat is not as great as found by the trial court; and that, from the value of the boat as found by the trial court, there should be deducted the sum of $3,077.92, by reason of the fact that the boat was sold to satisfy a judgment upon a lien placed oh the boat by the defendants, and that upon the stile of it November, 1918, on a judgment amounting, with interest, to $1,922.08 a sale was made for $5,000 and that the plaintiff should be given credit for the difference between the amount of the sale and the amount of the judgment upon which that sale was based.

A great deal of testimony was taken upon both questions raised here, and, as is usual in such cases, there is presented a choice between figures widely divergent. We are not prepared to say that the trial court was incorrect in fixing upon the figures which he made the basis of his judgment. But the plaintiff’s contention in regard to the credit to be allowed is well taken. This court has held the boat was the property of the defendants, and the proceeds of the sale to satisfy the judgment, based upon the lien against the boat, were proceeds belonging to the defendants, and after the amount sufficient to satisfy the judgment had been paid over to the judgment creditor, the balance is a sum to which the defendants are entitled, and for which the plaintiff is not liable.

The trial court was correct in finding that the foreclosure was on “a lien placed thereon by the Luketas without fault of the packing company,” and that interest should run on the judgment from the time “the boat was lost to all the parties” by the foreclosure— namely, November 16, 1918.

The judgment of the lower court will therefore be modified to the extent that there will be deducted therefrom the sum of $3,077.92, and the plaintiff will recover the costs of this appeal.