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(102 Wash. 51)

demanded the taxicab from the police deCITY OF EVERETT V. McCULLOCH, partment of the city of Everett, claiming Sheriff. (No. 14592.)

that he had a chattel lien upon the taxicab (Supreme Court of Washington, April 30,

for work previously done thereon. Delivery 1918.)

was refused, and he thereupon proceeded to BAILMENT 18(5)-FORECLOSURE,

foreclose his chattel lien by notice and sale Where one who claimed a chattel lien for under the provisions of sections 1104 to 1109, work on a taxicab which had been confiscated Rem. Code. The sheriff took possession of by plaintiff city proceeded to foreclose his lien the taxicab, served notice of sale upon the by notice of sale under Rem. Code 1915, 88 1104-1109, and defendant sheriff seized taxi mayor, the commissioner of public safety and cab under the foreclosure proceeding, and sold the chief of police of the city of Everett; it by authority of that proceeding, plaintiff, and on the 11th day of April the taxicab which did not contest foreclosure, could not was sold at public auction. The proceedings maintain replevin against sheriff.

for the foreclosure of the lien were not reDepartment 2. Appeal from Superior moved to the superior court of Snohomish Court, Snohomish County; Guy C. Alston, county, but prior to the sale of the taxicab Judge.

and on or about the 5th day of April the Action by the City of Everett against plaintiff began this action against the deJames M. McCulloch, Sheriff, to recover pos- fendant to recover possession of the taxicab. session of a taxicab. From that part of the This case is controlled by the case of Mack decree awarding damages in case return v. Doak, 50 Wash. 119, 96 Pac. 825. That could not be had, the city appeals, and from was a case where property was mortgaged, that part of the judgment to the effect that and after the mortgage became due the mortthe city was entitled to possession, defend- gagee proceeded to foreclose his mortgage. ant appeals. Reversed and remanded, with The mortgagors did not contest the foreclodirections to dismiss action,

sure in the superior court, but permitted the Wm. A. Johnson, of Everett, for appellant. sheriff to proceed with the sale, as was done

in this case. Thereafter the mortgagors atOgden & Clarke and Joseph Oakland, all of Seattle, for respondent.

tempted to recover damages for the wrong

ful taking of the property described in the MOUNT, J. This action was brought by

mortgage. In that case we said:

"The foreclosure here involved was commenced the city of Everett to recover possession of and conducted by notice and sale in exact coma certain Ford taxicab which was taken by pliance with the requirements of Bal. Code, $$ the sheriff from the possession of the police 5870–5875 (P. C. $$ 6535–6540). Section 5870 officers of that city. On the trial of the case provides that foreclosure may be made by notice the court found that the value of the taxicab of the notice shall be; and section 5872 express

and sale; section 5871 directs what the contents was $250; that the only interest which the ly provides that such notice shall be sufficient city had was the right of possession during authority, for the sheriff to take the property such reasonable time as might be necessary makes the

notice process sufficient to authorize

into his immediate possession. This provision to determine what disposition should be the sheriff to seize the property without the made of the taxicab; and that the city had consent of the mortgagor, and against his prono authority to confiscate the taxicab, other test. Any other construction would render the

statute ineffective. Section 5876, supra, prothan to require the owner to put up a bond vides a method by which the mortgagor may conditioned that the taxicab would not be protect himself against an unauthorized foreused for the unlawful sale or disposal of in- closure, or contest the amount claimed to be toxicating liquor for the period of one year. I themselves of the provisions of this section, but

due. The appellants did not see fit to avail The court concluded that the city was en- permitted the foreclosure and sale to proceed titled to the return of the taxicab, and, in without further protest or action upon their case return could not be had, to damages in part, and thereafter commenced this action for the sum of $1. The city has appealed from damages. Under these circumstances, the sher

ully protected in all of his proceedings that part of the decree awarding damages, by the notice which had been delivered to him, and the defendant has appealed from that and the appellants are not entitled to recover.' part of the judgment to the effect that the

See, also, Allen v. Morris, 87 Wash. 268, city was entitled to the possession of the tax- 151 Pac. 827. icab.

We think that rule is controlling in this The facts are as follows:

In January, case. Here the city attempts to maintain an 1917, three persons brought the taxicab to action in replevin against the sheriff, who the city of Everett. These persons escaped seized the property under the foreclosure from the taxicab. Two of them were arrest proceeding and sold it by authority of that ed, and the other was never apprehended. proceeding. The city now attempts to mainWithin the taxicab

found a large tain that the sale was irregular because of amount of bottled whisky. The men who some minor defects in the recording of the were arrested forfeited their bail, and were lien notice and the dates fixed for the sale; never brought to trial. The cases are still but these were matters which should have pending in the police court of the city of been determined by the superior court of Everett. Two months later one A. D. Scott (that county if the city claimed any interest

iff was

was

For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in the taxicab. The city did not seek that, times; and in the case as now presented the remedy, and it is now too late to claim own appellant has in his complaint attempted to ership or the right of possession of the taxi- avoid the errors upon which the decisions cab. The only interest which the city could were rendered against the appellant in the possibly have in this taxicab under the city several cases referred to, found in Collins v. ordinance is the right to require a bond Kinnear, 37 Wash. 453, 79 Pac. 993; Hotchthat the taxicab shall not be used for the kin v. Bussell, 46 Wash. 7, 89 Pac. 183, and 67 purpose of sale of intoxicating liquors for Wash. 206, 121 Pac. 455. For the sake of brev. a period of one year. The city apparently ity, a quality increasingly to be desired in judid not require that bond to be given prior dicial opinions, those cases are referred to for to seizure by the sheriff. The trial court the history and issues involved in the former therefore should have dismissed the action.

cases as well as in this. As will be seen by The judgment is reversed and remanded, reference to the former cases, the litigation with direction to dismiss the action.

has been pending in various forms since as ELLIS, C. J., and FULLERTON, CHAD- early as 1903. On July 27, 1903, Mrs. HotchWICK, and HOLCOMB, JJ., concur.

kin, then living, filed her petition or motion to vacate the judgment in the first case

wherein judgment was rendered in favor of (102 Wash. 161)

McNaught-Collins Improvement Company in HOTCHKIN v. McNAUGHT-COLLINS IM the superior court on appeal from the board

PROVEMENT CO. et al. (No. 14262.) of state land commissioners. The motion (Supreme Court of Washington. May 17, 1918.) was denied. Appeal was taken to this court 1. LIMITATION OF ACTIONS 16-STATUTES— and decided in 37 Wash. 453, 79 Pac. 995, To WHAT ACTIONS APPLICABLE.

Rem. Code 1915, $g 155-157, 159, 165, and dismissing the appeal because of failure te other provisions limiting period within which properly prosecute it. As shown in the pres actions shall be prosecuted, are intended to cov- ent complaint, she then on about May 4, er every form of action maintainable either in 1905, filed a complaint again praying the suall distinctions between actions at law and perior court to vacate and annul the decree actions in equity.

entered in the previous matter, which com2. EQUITY87(1) FOLLOWING LIMITA- plaint being dismissed she again appealed to TIONS.

Courts of equity in case of concurrent ju- this court. That case is decided and reportrisdiction consider themselves bound by the stated in 46 Wash. 7, 89 Pac. 183. In that case, utes of limitation which govern courts of law as in this, she alleged that the decree taken in like cases.

in the original proceeding was taken without 3. EQUITY87(1) FOLLOWING LIMITA- notice to her, and was in violation of a con

Courts of equity apply a statute of limita- tract with Collins, and that respondents had tions as it would have been applied at law, and notice, actual and constructive, of her prefgive it the same effect and operation in one

erence right to purchase the lands in quescourt as in the other. 4. TRUSTS O365 (3)–EXPRESS TRUSTS – AC

tion. Upon the decision of that case Mrs. TION-LIMITATIONS.

Hotchkin commenced another action against Where trustees asserted their adverse claim these respondents and one Trimble, which, beover 10 years ago, and the fact was made known ing decided against her, was appealed to this to the cestui que trust, who thereupon began to assert her claims, and litigated them to de- court, and is reported in 67 Wash. 206, 121 cisive and final judgment, the action is barred Pac. 455, and after the decision by this court by laches as well as limitations, although it be the court below dismissed the action as to all conceded that statute does not run during existence of a trust which is exclusively within the the other defendants in the case. These forjurisdiction of equity.

mer cases are mentioned and referred to in Department 2. Appeal from Superior Court, the complaint in the present case, and, for King County; R. B. Albertson, Judge.

the purpose of avoiding recurrence of certain Action by A. L. Hotchkin, administrator deficiencies pointed out in the complaint beof the estate of Delia M. Hotchkin, deceased, fore the court in 67 Wash. 206, 121 Pac. 455, against the McNaught-Collins Improvement

the present complaint contains an allegation Company and others. Judgment for defend that the former decree was rendered by ants, and plaintiff appeals. Affirmed.

agreement of all parties to the proceeding

who or which were in court and was renderJames Epler, of Seattle, for appellant. ed, as plaintiff is informed, simply upon such Ballinger, Battle, Hulbert & Shorts and Peters agreement and without the rights of the & Powell, all of Seattle, for respondents. several parties being shown by testimony,

and that defendant Trimble and the heirs of HOLCOMB, J. In this case appellant in Collins acting for themselves and for Mrs. his brief makes a comprehensive statement Hotchkin, deceased, joined in the agreement that the action is brought by him as adminis- for and in consideration of the money paid trator of the estate of bis deceased wife, in to them by the McNaught-Collins Improvewhose lifetime the action, substantially as ment Company for the preference right to here presented, was before this court three purchase the tidelands claimed by Collins

TIONS.

and Mrs. Hotchkin. A further allegation is "Actions can only be commenced within the included in this complaint that the motion, periods herein prescribed after the cause of ac

tion shall have accrued, except when in special upon which the decision of the Supreme

cases a different limitation is prescribed by Court sustaining the decision of the superior statute.” court in dismissing the case as to Trimble

This section is general, and applies to any only on the ground that the complaint did form of civil action, legal or equitable. Secnot show that Trimble shared in the pro- tion 156, Rem. Code, provides that actions ceeds of the sale of Mrs. Hotchkin's prefer- for the recovery of real property or for the ence right to purchase, in no way affected the recovery of possession thereof shall be comother defendants, and that the order dismiss menced within ten years from the accrual ing that action as to the other defendants of the cause of action. Section 157, Rem. was without any proper reason and decided Code, provides that actions upon any judgnothing. In the case reported in 67 Wash. ment or decree of any court of the United 206, 121 Pac. 455, and in this case, the prayer States or of any state or territory, and acof the complaint is that defendants, and tions upon a contract in writing or liability, each of them, be adjudged to pay the plain- express or implied, arising out of a written tiff such sum of money as the testimony upon agreement, shall be commenced within six the hearing of the action may show Mrs. years from the accrual of the cause of acHotchkin's interest in said lands to be worth, tion. Section 159, Rem. Code, provides that and for such other and further relief as to actions upon a contract or liability, express equity may belong. In that case it was de- or implied, which is not in writing, and does cided that, notwithstanding the prayer of not arise out of any written instrument, and the complaint, the action as to Trimble was actions for relief upon the ground of fraud, strictly a law action for money relief only. which shall be deemed to have accrued upon It was then vigorously contended that the the discovery by the aggrieved party of the action was an equity action, and should be facts constituting the fraud, shall be comconsidered upon that basis. It is now vigor- menced within three years after the accrual ously contended that this action is purely of of the cause of action. Section 165, Rem. equitable cognizance for the enforcement of Code, provides that actions for relief not a trust against the respondents, as to which thereinbefore provided for shall be commencthe statute of limitations does not apply, and ed within two years after the cause of acalso as to which it is claimed there was no tion shall have accrued. These and other adjudication in any of the former cases. statutory provisions limiting the period

[1] One of the grounds of demurrer in the within which actions shall be prosecuted are instant case, upon which the court sustained manifestly intended to cover any and every the demurrer and dismissed the action, is form of action maintainable either in law or that the action is barred by the statute of equity. The applicability of statutes of limlimitations. Appellant insists that it is a itation to equitable proceedings appears to be general and well-defined principle of law that, unquestioned in those jurisdictions in which when the demand is purely an equitable one, distinctions between legal and equitable remin other words, is one cognizable only in a edies have been abolished. 17 R. C. L. 736; court of equity, the statute of limitations Patterson, v. Hewitt, 195 U. S. 309, 25 Sup. does not apply, and in such cases courts do Ct. 35, 49 L. Ed. 214; Munson v. Hallowell, not recognize and are not controlled by the 26 Tex. 475, 84 Am. Dec. 582. period of limitations fixed by statute citing

[2, 3] Courts of equity in cases of concur. Depue v. Miller, 65 W. Va. 120, 64 S. E. 740, rent jurisdiction consider themselves bound 23 L. R. A. (N. S.) 775, Newberger v. Wells, by the statutes of limitation which govern 51 W. Va. 624, 42 S. E. 625, German v. Heath, courts of law in like cases, and this is rath139 Iowa, 52, 116 N. W. 1051, and many other er in obedience to the statute than by analauthorities to the effect that equity applies ogy.

Hence if the statute would bar an its own limitation. In this state, by section action at law, it will be equally a bar in 153, Rem. Code, it is provided that:

equity, the mode of relief making no differ“There shall be in this state hereafter but one

Courts of equity apply the statute as form of action for the enforcement or protection it would have been applied at law, and give of private rights and redress of private wrongs, to the statute the same effect and operation which shall be called a civil action."

in one court as in the other. The periods Thus, as the Code states generally, all prescribed by the statute are recognized in distinctions between actions at law and ac- such cases as imposing a limitation on the tions in equity are abolished.

cause of action itself, and not merely on the It is the policy of the law in this state, court in which it may be prosecuted. 17 R. as manifested by numerous legislative enact- C. L. 736, 737. ments, that periods shall be established when In the above authority an exception is any claim or demand for the enforcement stated where the relationship between the of any kind of rights shall be deemed too parties is that of trustee and cestui que trust. stale for enforcement. These statutes of The statute of limitations will not necessarilimitation are not regarded with disfavor, ly apply, although the remedies at law and being considered statutes of repose. By sec- in equity are concurrent. See, also, 25 Cyc. tion 155, Rem. Code, it is provided that: 1056, 1058. This exception is upon the prin

172 P.-55

ence.

ciple that, in the case of a technical, or, in either the state or the bonding company, does other words, direct, express, continuing trust, pot release the bonding company from its liasuch as is exclusively within the jurisdic-bility to either the subcontractor or one fur

pishing the subcontractor supplies; the bond tion of a court of equity, the general rule is having been given pursuant to Rem. & Bal Code, that the statute of limitations does not run 88 1159, 1161, as amended by Laws 1915, c. 28. between trustee and cestui que trust as long 2. STATES W101-CONTRACTORS' BONDS. as the trust subsists, for the possession of

Under a bond given pursuant to Rem. & Bal. the trustee is the possession of the cestui Code, $f 1159, 1161, as amended by Laws 1915,

c. 28, conditioned to pay subcontractors and all que trust, and the trustee holds according to persons who shall supply subcontractors with his title. In order to set the statute in mo- provisions and supplies for the work, the liabil. tion in favor of the trustee, the trust must ity of the bonding company to persons furnishterminate, as by its own limitations or by affected by absence of privity of contract be

ing subcontractors supplies for the work is not settlement of the parties, or there must be a tween the principal contractor and such person. repudiation of the trust by the trustee, and

Department 1. an assertion of an adverse claim by him, Court, King County; Mitchell Gilliam, Judge.

Appeal from Superior and the fact made known to the cestui que

Action by the Crane Company against J. G. trust. 25 Cyc. 1150. This exception also is Musgrave and E. A. Blake, copartners, and subject to the qualification that the cestui the Maryland Casualty Company, in which que trust may be barred of his remedy Musgrave & Blake filed a cross-complaint through laches or such a lapse of time as

against the Casualty Company. From a will give rise to a presumption of discharge or extinguishment of the trust. 25 Cyc. 1151. judgment for plaintiff and a judgment for

[4] In the present case, as shown by the cross-complainants, the Casualty Company history of the litigation between these par

appeals. Affirmed. ties, running through the reports covering the Grinstead & Laube, of Seattle, for appelsame heretofore, there can be no doubt that lant. Walter S. Fulton and Farrell, Kane & the exception with regard to an express con- Stratton, all of Seattle, for respondent. tinuing trust cannot apply in favor of appellant for the reason that it has been es

PARKER, J. This is an action upon a tablished that those whom Mrs. Hotchkin bond executed by the defendant Maryland claimed to be her trustees of an express, con- Casualty Company as surety and Beers Buildtinuing trust asserted their adverse claims as ing Company as contractor and principal as long ago as 1903, and the fact was made known provided by sections 1159–1161, Rem, Code, to the cestui que trust, who thereupon began relating to bonds of contractors to secure to assert her claims against them. She chose laborers, mechanics, subcontractors, and maand elected her remedy at that time, and lit-terialmen furnishing labor and material for igated her claims to decisive and final judg- the carrying on of public work. Trial in the ments. If she did not assert the proper equi- superior court for King county, sitting withtable remedy to enforce a trust, it was her out a jury resulted in findings and judgment fault and her laches. Under any considera- in favor of the plaintiff Crane Company and tion of the case, assuming it to be one of against the defendant casualty company in purely equitable nature, under our statute the sum of $2,190.99, and a judgment in favor and conceding the exception noted by the of the defendants Musgrave and Blake,ʻupon authorities cited, the action is barred by their cross-complaint against the defendant limitations as well as by laches.

casualty company in the sum of $130.62. This conclusion determining the case, the From this disposition of the cause the casuother questions are unnecessary to mention. alty company has appealed to this court. The judgment is affirmed.

On October 7, 1915, the state of Washing

ton by its Board of Control entered into a ELLIS, C. J., and MOUNT, J., concur. contract with Beers Building Company, by

which that company agreed to furnish the (102 Wash. 59)

labor and material for and to construct the CRANE CO. v. MUSGRAVE & BLAKE et al. plumbing and heating system of the admin(No. 14611.)

istration building of the State Institute for

the Blind, at Vancouver, according to plans (Supreme Court of Washington. April 30,

and specifications prepared therefor and by 1918.)

reference made a part of the contract. The 1. STATES O 101–CONTRACTORS' BONDS. specifications so made part of the contract

A state building contract, providing that the contractor shall not assign the contract nor sub-contained, among other provisions, the follet any portion thereof without the written con

lowing: sent of the Board of Control and the bonding “The contractor shall not assign this contract company, means no more than that there shall nor sublet any portion thereof without the writbe no substitution of parties in place of the ten consent of the Board of Control and the contractor in his contract with the state, releas- bonding company." ing the contractor from any obligation under the

Beers Building Company was to receive contract, without the consent of both the state and the bonding company, and an ordinary sub- as compensation for the work the sum of $7,contract by the contractor, not consented to by 260, payable in monthly installments as the

work progressed on the basis of 85 per cent., because of the failure of Beers Building Comof the value thereof; the balance to be paid pany to pay them according to the terms of in 30 days following the completion of the their contract; Beers Building Company work. On October 13, 1915, the bond here having received, at least, $1,750 on May and sued upon was executed by Beers Building prior installments upon its contract with the Company, as principal, and the defendant state, no part of which was paid by it to MusMaryland Casualty Company as surety, in the grave and Blake. For this reason Musgrave sum of $7,260. It contained recitals and and Blake quit the work the last of June, conditions as the law required as follows: 1916, leaving it uncompleted. Beers Building

“This bond is executed in pursuance of sec- Company having neglected to proceed with tions 1159 and 1161 of Remington and Ballinger's the work, the Board of Control declared its Annotated Codes and Statutes of the State of contract forfeited and at an end, and after Washington, as amended by chapter 28 of the tendering the completion of the work to the Session Laws of 1915, and is subject to all of the provisions thereof,' and is entered into with casualty company, as surety, and it also the state of Washington, for the use and benefit neglecting to proceed with the work, the of all laborers, mechanics, subcontractors and Board of Control caused the work to be commaterialmen and all persons who shall supply pleted. The work and material furnished by provisions and supplies for the carrying on of Musgrave and Blake, including that furnished the work covered by the contract entered into to them by the Crane Company, less the payon the 7th day of October, 1915, between the ments made to them by Beers Building Comabove bounden principal, Beers Building Company, amounted to $130.62 in excess of the pany, and the said state of Washington, for the plumbing and heating system of the Adminis- amount due Crane Company, measured by tration Building for the State Institution for the the terms of Musgrave and Blake's contract Blind at Vancouver, Washington, according to with Beers Building Company and was reathe terms and conditions of said contract. "And the conditions of this obligation are such ten consent was ever given by the Board of

sonably worth that amount. No formal writthat if the said principals shall faithfully perform all the provisions of said contract not in Control or the casualty company to the makconflict with said chapter 28 of the Laws of ing of the subcontract between Beers Build1915, and pay all laborers, mechanics, and sub- ing Company and Musgrave and Blake. That contractors and materialmen, and all who shall supply such person or persons, or contract was never recognized by the Board subcontractors with provisions and supplies for of Control or its architect as in any sense a the carrying on of such work

then substitution for the contract between Beers this obligation shall be null and void; otherwise Building Company and the state. In other to remain in full force and effect."

words, the state at all times looked to Beers On November 19, 1915, Beers Building Com- Building Company for the completion of its pany entered into a contract with the de contract, and, in so far as the Board of fendants Musgrave and Blake by which they Control or the state's architect directed Muswere to furnish the labor and material for grave and Blake in the performance of the and to construct the plumbing and heating work, such direction was to Musgrave and system as contracted for by Beers Building Blake merely as the representatives of Beers Company with the state. Musgrave and

Building Company. Blake were to receive from Beers Building

[1] It is contended in behalf of appellant Company as compensation therefor the sum casualty company that it is not liable upon of $7,000, payable in monthly installments as its bond to either Musgrave and Blake or the work progressed, on the basis of 80 per Crane Company, because neither it for the cent, of the value thereof, the balance to be state consented in writing or otherwise to the paid in 30 days following the completion of the work, but all such payments to be made making of the subcontract between Musgrave after monthly payments made by the state to Many authorities are cited and reviewed by

and Blake and Beers Building Company. Beers Building Company on its contract. By the terms of the original contract and sub- counsel to support the proposition that the

stipulation in the contract between Beers contract the work was to be completed by Building Company and the state that it September 15, 1916. The work was to be

should not "assign" or "sublet" the contract, done under the supervision of the state's architect, who was also to make the estimates consent of the “Board of Control and the

or any portion thereof, without the written for the monthly payments as the work pro- bonding company,” is a valid and binding gressed. Musgrave and Blake proceeded with stipulation. We may concede this for the the work under their contract, and between sake of argument, yet we think this falls far February 1 and June 28, 1916, Crane Com: short of calling for a holding in this case that pany furnished to them plumbing goods and the casualty company is not liable upon its supplies for the work of the reasonable value

bond to both Musgrave and Blake and Crane of $3,207.93, of which there remains unpaid and due to the Crane Company the sum of Company. Reading this stipulation in the $2,190.99. All of this material was furnished contract between Beers Building Company by Crane Company for and actually went into and the state in the light of the express conthe construction of the plumbing and heating ditions in the bond and the statute in pursu. system of the building and was suitable ance of which the bond was executed, it therefor. Musgrave and Blake did not com- seems to us that the stipulation means nothplete the work, but their failure to do so was ing more than that no assignment of the con

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