Kennery v. Northwestern Junk Co.

Holcomb, C. J.

(dissenting)—Appellant alleged in his amended complaint that, at the time of entering into the conditional sale contract involved herein, he was carrying on business in Seattle, King county, Washington, under the firm name and style of Times Square Garage, and had filed his certificate thereof with the county clerk as required by law. When the name Times Square Garage was appended at the end of the conditional sale contract, the same name was used as was entitled to be used as the business name of appellant, under our law. Any additional marks or name or signature as to the vendor would have been entirely superfluous. The name Times Square Garage was typewritten, not occurring merely in the body of the instrument as vendor, although it did so appear in a number of places, but in the place left for the signatures of parties, the place for the vendee’s signature being left above and described as vendee, and that of the vendor being described, as vendor; and in every other respect it is conceded that the instrument was so executed as to entitle it to be recorded as a conditional sale contract, and it was so recorded by the vendor within ten days as required by law. This in itself is sufficient to indicate that the vendor adopted the signature at the bottom as it was, without anything additional, and that that was his business signature and all the signature required.

As is pointed out in the majority opinion, the case of Jennings v. Schwartz, 82 Wash. 209, 144 Pac. 39, was finally decided by the court En Banc (86 Wash. 202, 149 Pac. 947), upon a ground not involving the validity of the vendor’s signature, and that case is not controlling. Nor is the reasoning in that case controlling in this, for in that case there was not even a pretended signature by the vendor at the conclusion of the instrument, but his name was only found in the body of the instrument.

The decided weight of the authority is to the effect that the signature may be printed or written, and that, while the statute requires that a memorandum be signed by the person to be charged, it does not require that the signature be in any definite form, and initials, marks, fictitious names, and even rubber stamps, have all been considered a sufficient compliance with the statute. The test in every instance seems to be whether the party or his duly authorized agent has signed the memorandum in such manner as to authenticate the promise. McCrea v. Bentley, 154 N. Y. Supp. 174; Kilday v. Schancupp, 91 Conn. 29, 98 Atl. 335; Dinuba Farmers’ Union Packing Co. v. J. M. Anderson Grocer Co., 193 Mo. 236, 182 S. W. 1036; Benjamin, Sales (6th ed.), §256.

The above authorities are all upon the question of sufficient compliance with the statute of frauds as to memorandum in writing to comply with such statutes. If such signatures are good in such cases, they ought, for the same reasons, to be good upon such a contract as this. Moreover, the vendor would not be permitted by this court, if attempt had been made on its part to avoid this contract of conditional sale, to have denied his signature. It would have been enforced against him. Neither he nor the vendee could dispute they signed this instrument. It was signed by both parties and filed under our conditional sale recording statute. If it was, therefore, good as to both parties and was entitled to be filed under our statute; it was good as to third parties when so executed and filed, and respondent, as an innocent third party, cannot complain of lack of notice under the recording act, or of having been misled.

For these reasons, I am compelled to dissent.