Kennery v. Northwestern Junk Co.

Parker, J. The plaintiff, Kennery, doing business as the Times Square Garage, seeks recovery of an automobile from the defendant, Northwestern Junk Company, resting his right of recovery upon an alleged forfeiture of the rights of Isaac C. Wood therein under a claimed conditional sale contract entered into between them, and the filing of such contract in the office of the auditor of King county. The case was disposed of by the superior court upon the allegations of the plaintiff’s complaint. The defendant having demurred to the complaint, the court having sustained the demurrer, and the plaintiff having elected to stand upon his complaint and not plead further, judgment of dismissal was rendered against him, from which he has appealed to this court. [657] The controlling’ facts may be briefly summarized from the allegations of the complaint, as follows: On June 18, 1918, appellant, being then the owner of the automobile, delivered it to Wood with a view of making a sale thereof to him. There was, at the same time, an instrument drawn up purporting upon its face to be á conditional sale contract, by the terms of which the title to the automobile was to remain in appellant until the full payment of the purchase price by Wood. This instrument was, within ten days after taking possession of the automobile by Wood, filed in the office of the auditor of King county as a conditional sale contract. Wood signed the instrument as vendee. The words claimed to be the proper signature of appellant were appended at the foot of the instrument in typewriting, as follows: “Times Square Garage, By......, Vendor.” Thereafter the automobile passed into the. hands of respondent as an innocent purchaser for value, unless it be held that' this instrument is a properly executed conditional sale contract, the filing of which in the auditor’s office gave the respondent constructive notice of such contractual relation between appellant and Wood. Counsel for appellant proceed in their argument upon the assumption that the only question in the case is whether or not the typewritten words appended at the foot of the instrument, to wit: “Times Square Garage, By............, Vendor,” is a sufficient compliance as to signature by appellant as vendor with § 3670, of Remington’s Code, which, in so far as necessary to here notice its language, reads as follows: “. . . all conditional sales of personal property, or leases thereof, containing a conditional right to purchase, where the property is placed in the possession of the vendee, shall be absolute as to all bona fide purchasers, . . . unless within ten days after the taking [658] of possession by the vendee, a memorandum of such sale, stating its terms and conditions and signed by the vendor and vendee, shall be filed in the auditor’s office of the county, wherein, at the date of the vendee’s taking possession of the property, the vendee resides . . ." It is argued in appellant’s behalf that the typewriting of the words “Times Square Garage” at the foot of the instrument answers the requirement of the statute as to signing by the vendor. The argument proceeds upon the theory that the typewriting by the vendor of his name, or the printing of his name by the use of a stamp, at the foot of such an instrument is an effectual signing thereof by him the. same as if he wrote his name there with pen and ink. There are decisions of the courts holding that a binding signature to a written contract may be so made by a party thereto, where the name of the party so appended to the writing is placed there with intent on his part to make it his signature to the contract. The fallacy of counsel’s contention here made is found in the facts that the words ‘ ‘ Times Square Garage, By.........., Vendor,” negatives the idea that they were placed at the foot of the instrument as the signature of the Times Square Garage. Indeed, taken in connection with the instrument as a whole, these words, and the form in which we find them, indicate plainly that they were placed there merely as a part of the drafting of the instrument, and were not intended to constitute a signature until the blank space should be filled in by the one authorized to act for the Times Square Garage in the making of the contract. In Jennings v. Schwartz, 82 Wash. 209, 144 Pac. 39, Judge Fullerton, having under consideration the sufficiency of the signature of the vendor to a conditional sale contract as required by this statute, where there [659] was no signature of the vendor appended at the end of the contract, his name appearing only in the body of the contract, speaking for the court, said: “It has the elements of a recording act. It will be remembered that, prior to its enactment, unrecorded conditional bills of sale of personal property were valid in this state, not only as between the vendor and vendee, but as to encumbrancers and purchasers without notice, and subsequent bona fide creditors of the vendee. It was thus possible for the vendee of such property to commit frauds by disposing of the property to innocent third persons and by using it as a basis upon which to obtain credit. "While the statute therefore tends in the same degree to prevent frauds between vendors and vendees through the instrumentality of perjury as does the statute of frauds, its principal if not primary purpose is to prevent the vendor and vendee of such property from committing frauds upon third persons. It would seem then, since it affects persons other than the parties to the agreement, the courts are justified in giving it a more strict construction than it gives to the statute of frauds; that it is proper to require that the instrument when filed shall show on its face a compliance with the statute; that the instrument shall be complete in itself; thus doing away with the necessity of inquiring into extrinsic matters to determine its validity. “Tested by the more strict rule, we are clear that this memorandum was not signed by the vendor within the meaning of the statute. The instrument would appear no different on its face had it been prepared wholly by the vendee without the knowledge or consent of the vendor. "Whether it was signed by the vendor or not was thus subject to dispute, even as between the parties, and the question could only be determined by an examination into their acts and conduct. The rights of third persons should not be left to depend upon such circumstances; as to them, the instrument should be fair upon its face. As this instrument, is not thus fair, we hold the sale absolute as to subsequent creditors in good faith. ’ ’ [660] Our attention is called to the fact that, upon rehearing, that case was differently disposed of by this court En Banc, in an opinion found in 86 Wash. 202, 149 Pac. 947, wherein the view is expressed that it was unnecessary to pass upon the validity of the conditional sale contract, as was done by the department in Judge Fullerton’s opinion. The opinion of the court En Banc, however, does not in the least take issue with the law as expressed in the department opinion upon the construction of the statute touching the signing of the conditional sale contracts. Notwithstanding the department decision did not decide the question which ultimately controlled the final disposition of the case, we are quite convinced that it expresses a correct view of the law therein discussed. We conclude that the judgment of the trial court must be affirmed. It is so ordered. Main, Mackintosh, and Mitchell, JJ., concur.