Kinkead v. Holmes & Bull Furniture Co.

The opinion of the court was delivered by Fullerton, J. This is an action in damages brought by the appellant against the respondent for the conversion of certain personal property, consisting of household goods. The complaint, with certain immaterial exceptions, was in the usual form. The answer was a general denial and a plea, by way of further and separate answer, of the statute of limitations. On the trial, at the conclusion of the testimony of the appellant the respondent moved for judgment against the appellant, which motion the court sustained on the ground that the action had not been commenced within the time limited by law. The facts appearing at that time were substantially these: The appellant in June, 1891, brought certain household furniture from San Francisco to Tacoma and went to housekeeping in Tacoma with her married daughter and son-in-law, one W. A. Clarke. About the middle of September following she returned to San Francisco, leaving her household goods in the possession [218] of Clarke and wife. Shortly thereafter Clarke mortgaged these goods, with certain of his own, to Holmes & Osgood to secure a debt which he owed to that firm. In October, 1891, Clarke broke up housekeeping, and pledged the property to the respondent to secure his indebtedness to it, delivering the property into its possession; Clarke at the time agreeing to pay the Holmes & Osgood mortgage, which he afterwards did. In August, 1893, the respondent sold the property and applied the proceeds of the sale towards the satisfaction of the debt which it was pledged to secure. It appears from the testimony of the' appellant that she first learned that the property had been pledged to the respondent by Clarke between “February and June, 1892, ” and that she immediately wrote to it, notifying it of her ownership of the property. Ho demand was made on the respondent for the return of the property prior to the commencement of the action. The action was commenced on the 16th day of Hovember, 1895. The material question presented by the record is, when did the cause of action accrue ? It is the contention of the learned counsel for the appellant that the. cause of action accrued at the time the property was sold, in August, 1893. He argues that, inasmuch as the respondent came -into the possession of the property without notice of the claim of the appellant, the appellant could not maintain an action against it for a wrongful conversion until demand was made for the possession of the property, or until the respondent, after it had received notice of the appellant’s claim, did some act with relation to the property inconsistent with the rights of the appellant; hence, as the evidence fails to show a demand, but does show 'that the-respondent had notice of the appellant’s ownership prior to the sale of the property, the cause of action accrued at and not before the time the property was sold and the respondent [219] applied the proceeds thereof to its own use. The fallacy of the reasoning of counsel, we think, lies in the assumption that demand, or some further act of conversion other 'than the original taking, was necessary in order that an action could he maintained by the appellant against the respondent for the recovery of the property or for its wrongful conversion. The rule is the other way. The mere act of receiving in pledge property from one who has no right to dispose of it is a conversion as against the true owner, for which such owner may maintain an action without demanding the return of the property, or without the pledgee doing any other act indicating an intent to appropriate it to his own use. “Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it, is a conversion.” Cooley, Torts (2d ed.), 118; Fernald v. Chase, 31 Me. 290. “A possession taken under a purchase from one without title, and who has himself been guilty of a conversion in disposing of the goods or chattels; is a possession unauthorized and wrongful at its inception, and which the absence of evil intent in the purchaser cannot make rightful or lawful. Such a possession is based on the assumption of a right of property, or a right of dominion over it, derived from the contract of sale; and what is this, in the legal sense, hut a wrongful intermeddling or asportation or detention of the property of another? At common law, a conversion is that tort which is committed by a person who' deals with chattels not belonging to him, in a manner which is inconsistent with the rights of the lawful owner.” Lord, C. J., in Velsian v. Lewis, 15 Ore. 539 (16 Pac 631, 3 Am. St. Rep. 184). The precise question here presented has been determined adversely to 'the appellant’s contention by the supreme court of California. In a case where the defendants had in good faith, and without notice of plaintiff’s rights, re [220] ceived in pledge the plaintiffs goods from her bailee, and afterwards sold them, it was held that the statute of limitations commenced to run from the time the defendant acquired possession, and not from the time of the subsequent sale of the goods by them. Harpending v. Meyer, 55 Cal. 555. The trial court, therefore, did not err in concluding that' appellant’s right of action accrued more than three years prior to the commencement of the action. It is insisted that there is no sufficient plea of the statute of limitations, and that for this reason the trial court erred in holding the action barred by that statute. The language of the answer in this respect is as follows: “For further and affirmative answer to said complaint, defendant says that more than three years elapsed between the accruing and commencement of plaintiffs alleged cause of action.” The appellant took issue on this part of the answer in the court below by general denial, and, so far as the record discloses, the question of its sufficiency or insufficiency as a plea was not brought to the attention of the trial court, but is raised here for the first time. It may be conceded that the plea-is defective and subject to demurrer, but we cannot agree with the contention of counsel that it is so radically defective as to be no plea at all. It was sufficient to put the appellant upon notice that the statute of limitations would be relied upon as one of the defenses to the cause of action stated in her complaint, and was therefore but a defective statement of a good defense, and not a statement of no defense at all. It was likewise capable of amendment. Morgan v. Morgan, 10 Wash. 103 (38 Pac. 1054). And, had the appellant raised the objection in the court below, the respondent would have been entitled to amend as of course. As no substantial right of the appellant was affected by this defect, it is insufficient to require a reversal of the cause by this court. Ballin [221] gers Code, § § 4957, 6535; Allend v. Spokane Falls & N. Ry. Co., 21 Wash. 324 (58 Pac. 244). The judgment is affirmed. Reavis, O. J., and Dunbar and Anders, JJ., concur.