Hammer v. O'Loughlin , 8 Wash. 393 ( 1894 )

The opinion of the court was delivered by

Hoyt, J.

— Appellants’ claim to the property in question is founded upon a levy thereon by virtue of a writ of attachment against the firm of Larson & Luddington. Respondent claims title by virtue of a bill of sale from said Larson & Luddington, executed and recorded before the levy of the attachment, and it is conceded that respondent was entitled to judgment if such bill of sale was to have force as such. It is contended, however, that it was given only as security, and that it should be construed as a chattel mortgage.

The testimony given by the respondent in relation to the circumstances under which the bill of sale was given, and the object and effect thereof is in no manner contradicted by the proofs offered by appellants. The substance of such testimony was that he was the owner of the property by virtue of a sale to him evidenced by said bill of sale; that the firm was indebted to him for a large sum of money, and was responsible for the obligations of certain of the men in its employ; that the property was sold to him for the purpose of paying such indebtedness, and if sufficient proceeds could be derived therefrom, also paying the obligations of the men. Such testimony directly negatived any idea on the part of the parties to the sale that any right to the property or to any of the proceeds thereof was retained by those who made the bill of sale. Such being the fact, there was nothing in the transaction which would change the presumption that the bill of sale was what it purported to be.

But few circumstances are relied upon by the appellants to overcome this testimony: One is that the respondent admitted at one time that if he made more out of the property than would pay the total amount due to him he would be willing to pay the overplus to Larson '& Luddington; but such admission had no tendency to establish the fact that prior to or at the time the bill of sale was made there was any such understanding as between him and the makers thereof.

It also appeared from the evidence that after the making of said bill of sale respondent took a mortgage on a team as security for any amount which might remain unpaid after the application of the proceeds of the property covered by the bill of sale, and that at one time he sought to get some money of said Larson & Luddington by way of a loan, or in reduction of the amount of their indebtedness.

In our opinion these circumstances were not sufficient to overcome the presumption growing out of the execution of the bill of sale, and the undisputed proof that at the time it was executed there was no reservation,of any right to the property or to the proceeds thereof by said Larson & Luddington.

The judgment must be affirmed.

■Dunbar, C. J., and Scott, Stiles and Anders, JJ., concur.