Page images

his possession and acts were the possession A. E. Bowe, of Cheyenne Wells, for plainand acts of his principal, Boulter. We must tiff in error. treat the matter, therefore, as if Boulter F. L. Grant, of Denver, for defendant in himself had done what Kinney did.

error. [3] He sold all the property in bulk and began to distribute the proceeds pro rata CAMPBELL, J. [1] Plaintiff, Denton, among his creditors. The sale in bulk was bought of defendant implement company a void as against creditors, because of O. L. model tractor, and a plow to be used in conC. 60, the Bulk Sales Law. The sale being nection with the tractor, and gave to the comvoid as against him, a creditor might attach pany therefor his three judgment notes, mathe property in Flood's hands, but, when turing at different times. When the first he garnishes the bank and Kinney and seeks note became due it was not paid, and the to hold the proceeds of the property, he af- holder reduced it to judgment. In the comfirms the sale, and the money, which under plaint here it is alleged that plaintiff cona void sale would be Flood's, is Boulter's, tracted with the defendant to buy, and and subject to the execution against him. bought, of the latter a new, but the defend

[4] It appears, however, that the company ant delivered to him an old, used, and sec has held Kinney's check ever since it was ondhand, tractor. The plaintiff had two remreceived. The defendant in error cannot edies; one in rescission, the other for damassume an equivocal position in attempting ages. He elected to rescind, and asked in to disaffirm the action of Kinney under the the prayer of his complaint to have the power. If it disaffirms the action, it must judgment on the first note annulled and the not retain any rights under that power. last two of the series of three notes canceled, Holding the check, which might be sued on and incidentally a judgment for a freight or cashed any day, was a retention of such bill which he paid on the shipment. The ana right. If the company bad cashed the swer denied that the tractor was an old one check, there could have been no question or had been used, and alleged that it was a about this. We think that the retention of new one of the very kind which plaintiff it when suing out execution amounted to the bought. The answer also denies that the desame thing, and that the defendant in error fendant practiced any fraud or deceit upon thus affirmed the action of the agent and the plaintiff, as alleged in the complaint, eicannot levy upon the money in his hands. ther in the purchase of the implements or

The judgment is reversed, and new trial otherwise. There were two witnesses for the granted.

plaintiff, he being one. There were two wit

nesses for the defendant, its manager and a TELLER, C. J., and WHITFORD, J., former employee who sold and delivered the

tractor while he was in its service. The conflict in the testimony is irreconcilable; the two witnesses for the plaintiff testifying that the tractor was not new, and those for the de

fendant that it was new. On this evidence DENTON V. EMERSON-BRANTINGHAM produced at the trial, which was to the court

IMPLEMENT CO. (No. 10964.) without a jury, the findings were for the de (Supreme Court of Colorado. Oct. 6, 1924.) fendant and the action was dismissed.

[2] We have read all the testimony in the 1. Sales 404_Buyer held to have option to transcript. If the plaintiff had any grievrescind or sue for damages.

ance, his remedy would seem to be for breach Buyer contracting for new and receiving of an implied warranty, or on the express old tractor may either rescind or sue for dam- warranty given by the defendant at the time ages.

of the sale, and not for a rescission of the 2. Appeal and error 1011(1)-Court's find-contract of sale on the ground that the tracing on conflicting evidence not disturbed. tor delivered was not the kind of a tractor

Where evidence is conflicting, findings can- he bargained for and bought. It could serve not be disturbed; court having seen and heard no useful purpose to review the evidence. witnesses testify.

The record presents a not unusual case of a

conflict. The judge of the trial court saw the In Banc.

witnesses in court and heard them testify Error to District Court, Cheyenne County; and under the prevailing rule in this jurisArthur Cornforth, Judge.

diction the findings and judgment cannot be Suit by F. R. Denton against the Emerson- set aside. The application for supersedeas Brantingham Implement Company. Judg- is therefore denied, and the judgment is afment for defendant, and plaintiff brings er-firmed. Affirmed, and supersedeas denied.

Supersedeas denied ; judgment affirmed. For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes




[ocr errors]



(230 P.)

ing mute, the court ordered a plea of not STATE v. NILNCH. (No. 18723.) guilty to be entered in his behalf.

No re

quest for additional time to plead, or for a (Supreme Court of Washington. Nov. 19,

continuance, was made. This action of the 1924.)

trial court is assigned as error. But we 1. Criminal law aw 1166(3)–Failure to arraign think it is a mere irregularity not affecting defendant before empaneling jury and open- any of appellant's substantial rights. What ing statement held mere irregularity not af. has already been said by this court in State fecting substantial rights.

v. Straub, 16 Wash. 111, 47 P. 227; State y. Where, after empaneling of jury and open- Sexton, 37 Wash. 110, 79 P. 634; State v. ing statement of counsel, court's attention was Kinghorn, 56 Wash. 131, 103 P. 234, 27 L. R. called to fact defendant had not been arraigned, A. (N. S.) 136, and State v. Garland, 65 Wash. and defendant was then arraigned, and, standing mute,,court ordered plea of not guilty, and 666, 118 P. 907, is sufficient answer to appeltrial proceeded; no request being made for lant's argument, and further comment is un. additional time to plead nor for continuance, vecessary. action of court was mere irregularity not af [2] 2. It is urged that the trial court erred fecting defendant's substantial rights.

in denying appellant's motion to dismiss for 2. Criminal law m576(5)–Failure to bring failure to bring the case to trial within 60 case to trial within 60 days waived where days after the date of the filing of the inmotion to dismiss not filed until day case was formation. Passing the question of an agreeset for trial.

ment of his counsel that the case should be Failure to bring case to trial within 60 continued, and like matters, it appears that days after date of filing of information was the motion to dismiss was not filed until the waived, where motion to dismiss was not filed day the case was set for trial, and was not until day case was set for trial, and was not called to the attention of the court until the called to attention of court until case was actu

was actually reached for trial. The ally reached for trial.

question thus presented has been decided ad3. Intoxicating liquors em 249-Search warrant versely to appellant's contention. State y. unnecessary to seize liquor in plain view in Seright, 48 Wash. 307, 93 P. 521; State v. automobile.

Alexander, 65 Wash. 488, 118 P. 645; State Search warrant is unnecessary to warrant v. Miller, 72 Wash. 154, 129 P. 1100. In the seizure of intoxicating liquor in plain view in Alexander Case, supra, this court said: automobile. 4. Criminal law m693—Timely application

“After the trial has begun, or when it is about must be made to suppress evidence unlawful- to take place, it is too late for the defendant

to move for a dismissal. The statute provides ly seized without search warrant.

a remedy for the defendant when the prosecuWhere fact of seizure of liquor by officers tor without cause does not bring the case to was known to defendant at time of seizure, he trial. It was not intended as a means to escannot complain of its admission in evidence cape or a method of delay when the trial is over his objection that it was unlawfully seized at hand. If the motion had been made prior without search warrant, where he did not, by

to the time of trial, the court, for good cause timely application or otherwise, move to sup- shown, would refuse a dismissal. When the press evidence.

trial is at hand, the defendant will be held to

have waived his right under the statute. Department 1.

There was therefor no error in the refusal of Appeal from Superior Court, Grays Harbor the court to dismiss the action when it was on County; Abel, Judge.

trial." Mike Nilnch was convicted of unlawful

[3, 4] 3. The third assignment of error is possession of intoxicating liquor, and ap- that the liquor seized by the officers without peals. Affirmed.

a search warrant was improperly received Martin F. Smith, of Hoquiam, for appel- in evidence. We think it sufficiently aplant.

pears from the record that the liquor was in W. J. Murphy, of Aberdeen, for the State. plain view in the appellant's automobile, and

that the offense was committed in the pres. TOLMAN, J. Appellant was charged with ence of the officers, to obviate the necessity unlawful possession of intoxicating liquor for a search warrant under the authority of for the purpose of sale, etc., and by the ver- State v. Llewellyn, 119 Wash. 306, 205 P. dict of a jury was found guilty of unlawful 394; State v. Miller, 72 Wash. 154, 129 P. possession. Appealing he presents three dis- 1100; State v. Hughlett, 124 Wash, 366, 214 tinct questions:

P. 811; State v. Duncan, 124 Wash, 372, 214 [1] 1. After the impaneling of the jury and P. 838, and State v. Basil, 126 Wash. 155, 217 the opening statement of counsel, the court's P. 720. But, however that may be, the fact attention was called to the fact that the de- of the seizure of the liquor by the officers fendant had not theretofore been arraigned. was known to the appellant at the time, and Thereupon, over the objection of his counsel, he did not, by timely application, or other. the defendant was arraigned and, he stand-, wise, move to suppress the evidence, under

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 230 P.-9

the rule laid down in State v. Dersiy, 121, der and by which she was to and did receive Wash. 455, 209 P. 837, 215 P. 34, State v. the sum of $50,000 in cash, an additional Smathers, 121 Wash. 472, 209 P. 839, 215 P. sum of $10,000 when certain real property 35, State v. Ennis, 126 Wash. 116, 217 P. 513, in Seattle was sold, and $30,000 additional and State v. McCormick, 127 Wash. 288, 220 when certain mining property in California P. 808.

was sold, which, it was represented, and she We find no merit in the other errors as was induced to believe, was more than her signed, and a discussion of them seems un- share of the community property, and was a necessary.

fair, just, and liberal settlement of the propThe judgment appealed from is affirmed. erty rights of the parties.

Appellant prayed for a complete and final MAIN; C. J., and HOLCOMB, PARKER, accounting to be had with the respondents and BRIDGES, JJ., concur.

after they had been compelled to expose and set forth a full and complete account of all property, real and personal of every nature

and description; that the agreements referBULLOCK v. BULLOCK et al. (No. 18841.) "red to in the complaint be set aside and (Supreme Court of Washington. Nov. 19,

held for naught; and that appellant have 1924.)

judgment against the defendants and each

of them for an equal and undivided half of Divorce 255-Decree reciting that commu- the value of all property real and personal

nity property had been amicably divided can- owned by the parties at the time of the not be collaterally attacked. Divorce decree, granting wife divorce, and less the amount appellant had already re

agreement mentioned, executed in July, 1921, approving division of community estate amicably entered into, cannot be collaterally at- ceived, and for such other and further relief tacked as by suit of wife to set aside property

as may be equitable. settlement for fraudulent concealment.

Respondent Kelleher answered, denying

all of the allegations of fraud, overreaching, Department 2.

deceit, and concealment, but admitted that Appeal from Superior Court, King County ; appellant and her husband reached an agree Ronald, Judge.

ment in settlement of their property rights, Action by Lavina Bullock against J. W. and, at their request, Kelleher drew up the Bullock and another. Judgment for defend written agreements, etc. ants, and plaintiff appeals. Affirmed.

Respondent Bullock answered, denying Walter S. Fulton and J. L. Corrigan, both the allegations of fraud, deceit, and concealof Seattle, for appellant.

ment, and admitted the making of the conBausman, Oldham & Eggerman and Wal- tract and settlement of the property rights, ter L. Nossaman, all of Seattle, for respond- and that at their request respondent Kelle ents.

her drew up the agreement.

As an affirmative defense respondent BulHOLCOMB, J. Appellant complains in her lock set up the divorce proceedings instituted action of alleged fraud of respondents in in- by appellant against respondent Bullock, and ducing her to enter into a settlement of prop- a supplementary contract in reference to the erty rights between herself and respondent division and settlement of the property Bullock. She complains that she did not re- rights of the parties, made at the request of ceive half of the community property in a appellant and her attorney, whereby addiproperty settlement preceding a divorce. It tional sums were paid for indebtedness of is alleged that respondents were intimately appellant in sums approximating $1,000; and closely associated together in business that the original agreement and the suppletransactions, and that respondent Kelleher mental agreement have been fully performed had a large amount of personal property by respondent Bullock; that appellant was owned by the community, the Bullocks, represented in the divorce proceedings instistanding in his name, and in his possession; tuted by her by her attorney; and that, among that the character and extent of such prop- other things, in her pleadings she alleged that erty was unknown to appellant, but that the parties to the action had divided amithere was in fact a large number of shares cably and justly their property between themof stock of the Seattle National Bank belong- selves by written agreement signed by them, ing to the community. It is also alleged | dated July 27, 1921, and by supplemental that through the concealment and deceit of agreement signed by them January 12, 1922, respondents, and on account of her nervous alleging that the agreements were just and and highstrung condition, caused by the acts equitable, and prayed that they be confirmed. and conduct of the respondent Bullock, she The agreements were set up in full as a part was induced to, and did, in July 1921, enter of respondent Bullock's defense. It was also into an agreement settling and dividing the alleged by respondents, and shown, that in property and interests of the community un-1 the divorce action, upon the prayer of ap

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

(230 P.) pellant's complaint, the contracts dividing The decisions in those cases are not appoand settling the property rights of the par- site. In the first decision there was no questies were approved and confirmed. Among tion involved of a decree approving the setother things, the trial court in that case tlement. A property settlement was set found “that the parties to this case have di- aside at the suit of the wife for fraudulent vided amicably and justly their property be. concealment by the husband. In the second tween themselves by written agreement, decision it appears from the opinion that on signed by each of them, dated July 27, 1921, the same day the contract of settlement was and by supplemental agreement signed by entered into the wife began her action for each of the parties dated January 12, 1922”; divorce, alleging that the parties had made and the court thereupon concluded that “the a complete adjustment of their property inproperty settlement and agreements above terests. This was admitted by answer. The described should be approved and confirmed decree in the divorce action confirmed the diby the court as just and equitable.” It was al- vision between the parties only as to real so alleged and shown by respondents at the property. The suit brought by the wife did trial that in the divorce proceedings the su- not relate to real property at all, but only to perior court made and filed an interlocutory personal property, which was not referred to order or judgment granting a divorce to ap- in the decree, and the division of which was pellant, in which it was ordered, adjudged, not confirmed by the court. In the opinion and decreed that the parties to the action it was said: had divided amicably and justly their prop

“The divorce court did not dispose of the erty between themselves by the above-men- personal property of the parties in any way, tioned written agreements, and that the but did confirm the division of the real estate." agreements were approved by the court as just and equitable. Thereafter, on August It was also said in the second Normile 17, 1922, the superior court made and filed Case: in the divorce action of appellant its final "The divorce proceedings could not have condecree by which the interlocutory decree of firmed that contract unless the contract had February 16, 1922, was in all respects con- been alleged and one or the other of the parfirmed, and appellant was granted an abso- ties asked that it be annulled or confirmed, lute decree of divorce from respondent Bul and the divorce court had acted thereon.” lock.

Respondent in every respect carried out In the case at bar appellant had alleged the agreements of July 27, 1921, and January the contracts involved, and had asked that 12, 1922, and appellant received and retain they be confirmed as just and equitable, ed all the moneys so paid to her by respond- which was done. The adjudication thereon ent.

is therefore binding, unless attacked and set The interlocutory decree of February 16, aside in a direct attack in the divorce case. 1922, and the final decree of August 17, 1922, Such is not this case. have never been modified, and at all times The judgment must be and is affirmed. have been in full force and effect, and no appeal was taken therefrom by either of the MAIN, C, J., and FULLERTON, PARKER, parties. The lower court held that the prior and BRIDGES, JJ., concur. judgment, unappealed from, unmodified, and unassailed in any direct proceeding, could not be attacked collaterally as he held is the case here.

It must be noted by the synopsis of the DEHNHOFF V. HEGE et al. (No. 18514.) pleadings and the evidence given here that what appellant seeks to do is to set aside (Supreme Court of Washington. Nov. 18, contracts which had been adjudicated in her

1924.) favor as just and equitable. She has not attacked the decree, or the interlocutory de-. Vendor and purchaser Crow 37(3)-Bank hold.

ing only sheriff's certificate of sale of land cree of divorce. Therefore this is purely a

held liable to purchaser relying on represencollateral attack. Peyton v. Peyton, 28

tations of ownership. Wash. 278, 68 P. 757; Schultz v. Christo

Bank which represented itself as owner of pher, 65 Wash. 496, 118 P. 629, 38 L. R. A. land when it held only a sheriff's certificate of (N. S.) 780; Hicks v. Hicks, 69 Wash. 627, sale, which was predicated on a defective judg125 P. 945; Loeper v. Loeper, 81 Wash. 454, ment, held liable to purchaser who relied upon 142 P. 1138; Fullington v. Fullington, 106 such representations of ownership. Wash. 239, 179 P. 843; and Hilleware v.

2. Deeds On 22-Deed held one of bargain and Hilleware, 104 Wash. 361, 176 P. 330.

sale under statute, Appellant relies largely upon our decisions

Deed, whereby bank granted, bargained, in Normile v. Denison, 109 Wash. 205, 186 sold, conveyed, and forever quitclaimed certain P. 305, and upon second appeal, 116 Wash. realty, held one of bargain and sale, under Rem. 452, 199 P. 995.

Comp. Stat. § 10553.

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

Department 2.

kane county property. Hege & Watkins beAppeal from Superior Court, Spokane ing unable to pay the administratrix within County; Lindsley, Judge.

the year, by agreement of all the parties, Action by Edna M. Dehnhoff, as adminis- they gave to her their three promissory tratrix of the estate of Edward Cockle, de notes, aggregating $2,500, and at the same ceased, against S. E. Hege and wife and J. time received possession of the deed executed E. Watkins and wife and others, wherein by the bank, and which had previously been the named defendants filed cross-complaint

held in escrow. They paid one of their against plaintiff and the First National Bank notes, but refused to pay the other two, beof Harrington. From the judgment rendered cause, as they claimed, they learned at that for plaintiff against the named defendants, time that the bank did not have title to the and for them against the First National land which it purported to convey. The reBank, the Bank appeals and Hege and Wat- sult was that the administratrix sued Hege & kins cross-appeal. Affirmed.

Watkins on their two notes. The bank hav

ing been brought in as a defendant, Hege & Freece & Pettijohn, of Davenport, and Watkins alleged as against it the facts outMerritt, Lantry & Baske, of Spokane, for lined above, and also that it did not have appellant.

title to the land it had conveyed, and that Tustin & Chandler, of Spokane, for re- it had represented it had such title, and that spondents.

they relied on such representations, and they

sought a rescission of the transaction in so BRIDGES, J. The general facts are far as it affected them and the bank, deposthese: Mrs. Dehnhoff, as administratrix of iting into court a quitclaim deed to the Spothe estate of Edward Cockle, was the owner kane county property, and demanding judgof a large tract of land in Lincoln county, ment against the bank for $2,500, the amount this state, and the First National Bank of which they had agreed to pay the adminisHarrington held a sheriff's certificate of sale tratrix. covering lands in Spokane county. Messrs. There was a judgment for the plaintiff for Hege & Watkins were real estate men, who the amount due on the notes, and also a had the sale of the Lincoln county land. judgment in favor of Hege & Watkins against They were informed by the bank that its the bank for the sum of $2,500 and certain Spokane county land was for sale. After interest, which judgment ordered that the considerable negotiations, Hege & Watkins deed to the Spokane county property which procured the bank to make a proposition to had been deposited in court should be delivthe administratrix that it would purchase ered to the bank. The latter has appealed. her land for a certain consideration, turn [1] The trial court found as a fact that ing in as part of the consideration the Spo- the bank had represented to Hege & Watkins kane county land, and paying the balance in that it was the owner of the Spokane county cash. The administratris refused to enter- land, whereas it was not such owner, and betain this proposition, because she did not cause thereof Hege & Watkins were entitled want the Spokane county land. After fur- to a rescission and judgment for $2,500. As ther negotiations, the following oral agree- between the bank and Hege & Watkins, who ment was made: The administratrix, with are the principal parties to this appeal, the the consent of the court, was to deed her situation is as though the bank had deeded property to the bank for a certain consider- its Spokane county property to Hege & Watation, and was to deed the Spokane coun- kins, and the latter had paid therefor $2,.ty land to Hege & Watkins or their order, 500, and they were by this action attemptwho agreed to pay the administratrix the ing to rescind the sale and recover what they sum of $4,000, being the difference between had paid. what she was to receive from the bank and But another peculiar circumstance arises. the price at which she held her land. Fif- It appears that, when Hege & Watkinsteen hundred dollars of this amount was to learned that the bank did not have title, they be paid by Hege & Watkins by waiving a requested that it secure the same, and it did commission of $1,500 which they were to re- offer to obtain a sheriff's deed (the year for ceive from the administratrix for procuring redemption having expired), but Hege & Watthe sale of the land, and the balance of kins refused to accept that proposal, claim$2,500 they were to pay her within one year. ing that the sheriff's deed would not help The deed to be executed by the bank to its the title. This position on their part was property was to be held in escrow, and not based on the following facts: One Dobson delivered to Hege & Watkins until they had and wife had been the owners of the Spokane paid the administratrix, These arrange- county land, and the bank had sued them on ments were carried out by the administratrix an alleged community debt. Both defenddeeding her property to the bank and the ants were served with process, and neither latter upon the order of Hege & Watkins appeared in the action and for some unacgiving a deed to Dora A. Wyrick, who was a countable reason default and judgment were sister of Mrs. Watkins. That deed recited taken against only Mr. Dobson and not that the bank "does hereby grant, bargain, against Mrs. Dobson. Upon that judgment sell, convey, and forever quitclaim” the Spo- execution was issued, and the property sold

« PreviousContinue »