DocketNumber: No. 11844
Citation Numbers: 82 Wash. 74
Judges: Main
Filed Date: 10/9/1914
Status: Precedential
Modified Date: 8/12/2021
The purpose of this action was to recover damages for failure to transfer and deliver to the plaintiff, as agreed, certain saloon property in the city of Aberdeen, Washington. The cause was tried to the court and a jury. A verdict was returned for the plaintiff in the sum of $5,895. The defendant interposed a motion for judgment notwithstanding the verdict and, in event it was denied, for a new trial. The court declined to enter a judgment notwithstanding the verdict, and overruled the motion for a new trial. Thereupon judgment was entered upon the verdict. The defendant appeals.
The facts in the case are substantially as follows: The appellant is a Washington corporation, engaged in the manufacture and sale of beer at Aberdeen. For approximately one and one-half years prior to April 18, 1908, the respondent had been the manager of this corporation. For a somewhat longer period, he had acted as its secretary. On April 18, 1908, the respondent and the appellant entered upon negotiations looking to an adjustment and settlement of the questions which had grown out of the business relations of the parties. At this conference, the appellant had two representatives, its attorney and one other. There was also present the assistant manager, who acted as a sort of intermediary, using his good offices, so far as possible, to affect an amicable adjustment of the affairs. When legal questions were under discussion, being a lawyer, he advised the respondent as to his rights. The negotiations looking to a settlement extended over several days. Finally a settlement was agreed upon. By the terms of this agreement, the respondent was charged with certain items of property, amounting
Some time during the fall of the year 1907, the respondent, as manager of the' brewing company, had sold this saloon to Sorensen & McDonald for the sum of $5,000, $500 of which sum was paid in cash; and notes in the sum of $150, each, payable monthly thereafter, were taken for the balance of the purchase price. During the trial, this transfer to Sorensen & McDonald was referred to as a conditional sale. The contract, however, was not introduced in evidence, nor was there any testimony as to its terms and conditions. At the time of the settlement, three of the'notes which had been given by Sorensen & McDonald for the purchase price of the saloon had been paid. The Sorensen & McDonald notes had, prior to April 18, 1908, been indorsed to the Aberdeen State Bank by the Brewing Company, as collateral security for a loan to it. After the settlement, the assistant manager took active charge of the business of the Brewing Company. The respondent remained as nominal manager until about June 1st of the same year, when he departed for California to be gone a number of weeks. When the settlement was consummated, conveyances were made between the parties, except no bill of sale of either of the saloons Was executed or delivered to the respondent. It was necessary that these bills of sale be executed by the president of the company, who was not present at the conference. The respondent returned from California about the middle of July. On the 29th of
The principal question in this case is whether there was evidence from which the jury might reasonably have drawn the inference that the parties did not intend the title to the Alaska saloon to pass until the bill of sale therefor had been executed and delivered. Upon this branch of the case, there seems to be no controversy over the law. Both parties recognize the general rule that, in a sale of personal property, assuming that the statute of frauds is not involved or has been satisfied, and the rights of subsequent purchasers or creditors are not concerned, the title to the property will pass upon the completion of the contract, if the property has been identified and appropriated to the contract, even though it be not delivered, unless the contrary intention appears. 1 Mechem, Sales, § 485.
The trial court, by an appropriate instruction, submitted to the jury the question as to when the parties intended that the title to the Alaska saloon should pass. The jury, by its verdict, in effect found that it was the intention that the title should not pass until the bill of sale had been delivered. The appellant claims that there is no evidence which justifies this finding of the jury, and that the question, therefore, was one of law for the court. The respondent claims that there was evidence from which the jury might reasonably conclude that it was the intention of the parties that the title should not presently pass. Upon this question, the evidence showed that the attorney for the company, at the time the settlement was concluded, stated that the board of trustees would have to
The appellant further claims that the respondent could have taken possession of the property at any time subsequent to April 18, 1908, and that in fact he did so. These questions were properly submitted to the jury, and the jury, under the evidence, were justified in resolving them against the contention of the appellant.
The court, in the course of its instructions, told the jury that, if the saloon property was transferred to Sorensen & McDonald under a conditional sale contract, and the notes given for the purchase price were thereafter negotiated to the bank as collateral security, the title to the saloon became vested in Sorensen & McDonald. Error is sought to be
Other errors are claimed as to the instructions given and the refusal to give requests. Without reviewing these in detail, it may be said that the instructions given sufficiently covered the law of the case. The instructions requested and refused, so far as they contain correct statements of the law as applicable to the facts in this case, were covered by those given.
Finally, it is contended that the verdict is excessive. Two trials have taken place in the superior court. Upon the first trial, the jury returned a verdict for $4,050. A motion for a new trial being granted, the cause was tried a second time, and the jury returned a verdict for $5,895. This verdict, evidently, was for $4,500 and interest thereon. There is evidence in the record which would sustain a finding of value of $4,500, and no question has been raised relative to the allowing of interest.
The judgment will be affirmed.
Crow, C. J., Ellis, Gose, and Chadwick, JJ., concur.