
    [No. 3116.
    Decided March 28, 1899.]
    Claus Skavdale et al., Appellants, v. W. H. Moyer, Sheriff of King County, Respondent.
    
    ESTOPPEL — EFFECT OF TESTIMONY IN ANOTHER ACTION — WHEN PARTY NOT CONCLUDED.
    The fact that, in an action by claimants of the right of title in a boom of logs which had been levied upon as the property of an individual member of a co-partnership, some of the members had testified that in their opinion the claimants were owners, under a written contract between claimants and the co-partnership, would not estop the co-partnership from subsequently asserting its ownership when the judgment in the original action had been against the right of ownership in the claimants.
    EXECUTION — LEVY ON PARTNERSHIP PROPERTY FOR ONE PARTNER’S DEBT -CONVERSION.
    When a sheriff levies upon-specific personal property belonging to a partnership as the property of one co-partner, his levy is void, and the partnership may maintain an action against him for conversion, since § 5271, Bal. Code, providing for levy upon an individual partner’s interest, does not authorize the sheriff to deprive a co-partner in any way of his interest in the property.
    SAME-WHEN SHERIFF ESTOPPED TO DISPUTE VALUE.
    Where a sheriff has wrongfully seized property and holds the proceeds of sale thereof in a certain sum, he cannot, in an action against him for conversion, set up the defense that the property was of less value.
    (Dunbar, J„ dissents.)
    Appeal from Superior Court, King County. — Hon. E. D. Benson, Judge.
    Reversed.
    
      John K. Humphries, W. E. Humphrey, and Harrison Bostwick, for appellants.
    
      John C. Barnes, for respondent.
   The opinion of the court was delivered by

Reavis, J.

— Action for conversion of a certain lot of logs. The complaint alleges the copartnership of appellants (plaintiffs) ; that the copartnership was the owner and in the possession of a certain lot of logs in a boom in King county, of the value of $1,200; that respondent wrongfully took possession of such logs as the property of Thomas Jose, under an execution issued out of the superior court upon a judgment in favor of one Gustin et al. against Thomas and M. L. Jose, members of the copartnership; that after the wrongful levy upon the logs, claim of ownership was made thereto by one Oarstens et al., and the usual affidavit of ownership and bond were, filed by them, and the logs were delivered to them and sold by them for $1,200; that such claim of ownership by Oarstens et al. was not sustained by them, and the respondent recovered upon the bond executed by them in the sum of $1,200 and costs. The answer of respondent admits the levy upon the logs as the property of Thomas Jose, and that they were claimed by Oarstens et al., and adjudged not the property of said claimants, and that he holds, as the proceeds from such logs so levied upon by him, the sum of $1,200. The answer is, in effect, after such admissions, a general denial of the ownership and right to possession to the logs of the appellants. At the conclusion of the trial, the superior court dismissed the jury from further consideration thereof, and entered judgment for respondent.

The only testimony offered, with the exception of the complaint in another action pending in the superior court between different parties from those in the case at bar, and which is immaterial, was that produced by the appellants. The facts shown at the trial were substantially that the lot of logs in question were cut and placed in the boom by appellants; that, at the time such logs were placed there, there was existing a written contract between Oarstens et al. and appellants; that both' parties to the contract construed the same as vesting title in Oarstens et al. at the time the levy was made hy respondent, as sheriff, upon the logs. It was stated hy the witnesses of appellants, who were members of the partnership, that they supposed the instrument of writing gave Carstens et al. the title to the logs at the time the levy was made; but it was further shown that, in the trial where the respondent and G-ustin et al. were defendants, Carstens et al. were adjudged by the superior court not entitled to the lot of logs. The witnesses for appellants testified that the copartnership was the owner of the logs at the time the levy was made. It was also shown that the proceeds of the logs received hy the sheriff in place of the logs were $1,200.

1. Respondent, as sheriff, does not justify in his answer the levy upon the logs, but seemingly his contention is that appellants did not show they were the owners or entitled to the possession of the logs at the time of the levy upon- them as the property of Thomas Jose. The question, then, is, was the copartnership of appellants the owner or entitled to the possession of the logs at the time the seizure was made by respondent? If so, the controversy is resolved against respondent. Counsel for respondent argues that, appellants having construed the contract between themselves and Carstens et al. as one placing the property in the logs in Carstens et al., appellants are thereby estopped from claiming the logs for themselves. But it does not seem, from an examination of the facts, that any estoppel arises against appellants. Respondent’s levy upon the logs was not based upon any acts or opinions of appellants. His levy was not made upon partnership property, but upon the individual property of Thomas Jose. The suit that followed between Carstens et al. and respondent and the judgment creditors of Thomas Jose determined that Carstens et al. were not the owners or entitled to the possession of the logs. Respondent was a party to that action. It would certainly be a singular legal principle that would not permit him to assert, contrary to the adjudication procured by him in that suit, that Garstens et al. are now the owners or entitled to the possession of the logs. The uncontroverted evidence in the case at bar shows that appellants, as a copartnership under the style of the Saginaw Logging Company, were the owners of these logs; that they had never disposed of the same unless to Garstens et al.; and it was conclusively adjudicated in the action between Garstens et al. and this respondent that they had not made such disposition to Carstens et al. The case of Hoke v. Lowe, 48 Ill. App. 126, is in point here. In that case an agent of a machine company sold to the defendant a mowing machine, telling defendant that he would have to have the money on the first day of September following, as the machine company’s agent would be there on that day and he would have to pay for all machines he had sold. Defendant did not pay for the machine. The agent paid the machine company for it and sued defendant for the price. On the trial it was shown that the machine company had before sued defendant for the same machine, and, on the trial of that suit, that defendant testified that he owed the agent, and not. the machine company, for the machine. A judgment was thereupon rendered against the machine company. The agent in the same action testified that, in his opinion, the defendant owed him nothing, and it was urged that the former trial adjudicated and established the agent’s right to claim the property for himself. But the appellate court, in reversing the cause, observed:

“ The subject-matter of the former suit was the alleged indebtedness of Lowe to Deering & Co. for the machine here in question, and how an adjudication that there was none from Lowe to Deering & Go. for it could determine that there was none to Hoke, passes our understanding. It was not denied in that case that Lowe bought the machine and was indebted for tbe price to somebody, bnt tbe question, and the only question was, to whom. Deering & Co. claimed it was to them. Lowe claimed it was not to them because it was to Hoke, and now claims, because tbe jury found it was not to Deering & Co. that sucb finding and tbe judgment thereon conclusively proved that it was not to Hoke. It may be presumed that tbis idea would not bave occurred to court or counsel but for tbe fact that Hoke himself testified to bis opinion that Lowe owed bim nothing; and yet it is clear that a verdict and judgment for tbe defendant would bave bad tbe same legal effect as an adjudication, if Hoke bad not testified at all. Had bis statement been an admission of fact it would have been entitled to great weight as against bim; but being mere matter of opinion, it was entitled to none.”

Thus, in tbe case at bar, it is immaterial what may bave been tbe statements of some of tbe members of appellant company. It was a matter of opinion upon tbe construction of a written instrument. They were not parties to that action, and tbe real issue here is, who owned the logs in fact; and while, as observed by tbe appellate court of Illinois, it might affect tbe credibility of their testimony in tbis case, we cannot see that it impairs it. Their testimony in tbis case shows clearly that what they said with reference to tbe controversy of Oarstens et al. against respondent and Gustin et al. was tbe expression of opinion. In tbis cause the specific facts shown are that appellant copartnership was the owner and entitled to tbe possession of tbe lot of logs, unless Oarstens et al. were their successors in ownership and possession. But, as before observed, it was conclusively determined that Oarstens et al. were not sucb owners.

2. It is evident that Thomas Jose bad no right, title or interest in tbe logs levied upon, because tbe same belonged to tbe Saginaw Logging Company, appellant co-partnership. Under § 5211, Bal. Code (2 Hill’s Oode, § 8021), the sheriff may take possession of the partnership property and sell the interest of an individual partner in such property, describing such interest in his advertisement as nearly as may be, and the purchaser shall acquire all interest of such defendant therein. “But nothing contained herein shall be so construed as to deprive such co-partner of any such defendant of his interest in any such property.” Prom the nature of a partnership, the only custody the sheriff may rightfully take of copartnership personal property is for the purpose of the sale of an individual partner’s interest, and at such sale the purchaser acquires only the interest so sold, the right to demand an accounting, and any surplus due after such accounting from the partnership to the interest which he has purchased. He is not entitled, as against the copartnership, to the possession of any specific property. Neither -does the sheriff sell any interest in any specific personal property. When the sheriff levied upon the copartnership property and took possession thereof as the property of Thomas Jose, his levy was void, and his taking and disposing of the lot of logs was conversion against the copartnership. Atkins v. Saxton, 77 N. Y. 195; Richard v. Allen, 117 Pa. St. 199 (11 Atl. 552, 2 Am. St. Rep. 652) ; Lane v. Lenfest, 40 Minn. 375 (42 N. W. 84). The last case determines specifically the right of the copartnership to prosecute such action for conversion. See, also, Preeman on Executions (2d ed.), § 125. The same author (in § 254a) observes, with reference to such levies:

“ Where the levy is permitted, its ultimate effect is to confer on the purchaser thereunder nothing beyond the right to an accounting. This is all the judgment debtor has, and therefore all he can transfer, whether the transfer be voluntary or involuntary. ... In other states the seizure of either a part or the whole of the chattels of a copartnership, under a writ against one of its members, and the exclusion of his copartners from their possession, is unauthorized, and warrants an action of trespass against the officer.”

3. [Respondent, then, as sheriff, having seized the property of the appellant company and converted the same, and now holding the proceeds thereof in the amount of $1,200, cannot he heard to say that the property was of less value. It is admitted that the proceeds of the conversion are in that amount. He has shown no justification for such seizure, and we conclude that it was a proper case for decision by the court when the evidence was all heard. ■ But the judgment should have been for the plaintiffs (appellants). The cause is therefore reversed and remanded, with direction to enter judgment for appellants for the sum of $1,200 and costs.

Gordon, O. J., and Anders, J., concur.

Dunbar, J., dissents.  