
    [No. 15466.
    Department One.
    January 7, 1920.]
    O. R. Richardson, Respondent, v. Great Western Motors, Incorporated, Appellant.
    
    Sales (182)—Conditional Sales—Remedies of Seller—Retaking Possession—Impairment of Security—Evidence—Sufficiency. Before the vendor in a conditional sales contract can take possession of the property under the insecurity clause in the contract, it must show that the vendee had committed or was about to commit some act tending to impair the security, and it is not sufficient to show unpaid storage charges which did not impair the security.
    Trover and Conversion (5)—Acts Constituting—Retaking Possession by Conditional Sale Vendor. The vendor in a conditional sales contract of an automobile wrongfully taking possession of the ear, is guilty of a conversion.
    • Same (11)—Actions—Condition Precedent—Demand. Upon the wrongfully taking possession of property, no demand is necessary as a condition precedent to an action for a conversion.
    Same (8)—Right of Action—-Waiver. The fact that a conditional sales vendee of an automobile, that had been wrongfully taken from him by the vendor, requested to be taken to it in order to get his license plates, does not constitute a waiver of his right to claim a conversion.
    Same (31)—-Damages for Conversion-—Measure of Damages. The measure of damages -for the wrongful conversion by a conditional sales vendor is the value of the property at the time of the conversion, less the balance of the unpaid purchase price, and it would he unnecessary to plead such balance as a counterclaim or set-off.
    Appeal from a judgment of the superior court for King county, Frater, J., entered March 24, 1919, upon findings in favor of the plaintiff, in an action for conversion, tried to the court.
    Modified.
    
      Dan Earle, for appellant.
    
      John F. Dore, for respondent.
    
      
      Reported in 187 Pac. 333.
    
   Main, J.

The purpose of this action was to recover damages for the conversion of an automobile. The cause was tried to the court without a jury, and resulted in findings of fact, conclusions of law and judgment sustaining* the right to recover. From this judgment, the defendant appeals.

The facts out of which the litigation arose may be summarized as follows: On April 15, 1918, the appellant sold to the respondent an automobile upon a conditional sales contract. At the time of the sale, a portion of the- purchase price was paid in cash and the balance, by the .terms of the contract, was to be paid in installments falling due on the 15th day of each succeeding month. The payment which became due on December 15, 1918, was not paid on that date. On January 6, 1919, a representative of appellant called at the bank where the payments were to be made and ascertained that the December payment had not yet been made. Later during this same day the respondent called at the bank and made the payment. On January 7, the day following, the appellant took possession of the car and removed it to its garage. Approximately six weeks prior to this time the respondent had put the car in another garage. The automobile had been used as a jitney or for-hire car; the engine of the car was in a somewhat torn-down condition. Despondent had been working* upon it at odd times during the six weeks mentioned. The contract contained a provision for forfeiture in case of default in the payments, and also a clause that the vendor (the appellant) should have a right to take possession of the car if it should “deem itself insecure.” The provision with reference to forfeiture for nonpayment will not be further referred to, because, at the time the car was taken by the appellant, there was then no payment in default. The respondent instituted this action before the 15th da.y of January, when the next payment became due. The appellant, after the January payment became due and was unpaid, declared a forfeiture of the contract.

The appellant first claims error in the exclusion of evidence. Upon the trial it offered to prove that the owner of the garage in which the- car was stored where the repairs were being made by the respondent had complained to the officers or employees of the appellant that the car was in his way, that the storage charges were unpaid, and that he was unwilling that it remain there longer. This offered evidence was objected to by the respondent and excluded by the court. The purpose of offering it was to show that the appellant was justified in taking possession of the car under the insecurity clause in the contract. To justify .the appellant in taking possession under this provision it was necessary for it to show that the respondent had committed, or was about to commit, some act which would tend to impair the security. It could not act in a purely arbitrary manner. Newlean v. Olson, 22 Neb. 717, 36 N. W. 155, 3 Am. St. 286; Skookum Lumber Co. v. Sacajawea Lumber & Shingle Co., 107 Wash. 356, 181 Pac. 914, 187 Pac. 410.

From the evidence offered and rejected, the appellant would not be reasonably justified in concluding that the respondent had done, or was about to' do, some act which would impair the security. In the argument it is claimed that the owner of the garage in which the car was stored was threatening to set the car out in the street if it was not taken away by the appellant. The offers of testimony, however, do not go to this extent. The evidence is only to the effect, as above indicated, that the storage charges were accumulating; that the car was in the way; and that the owner of the garage desired that the appellant take it away. As to the storage charges, it only need he said that the respondent contends,' and the appellant concedes, that snch charges were subordinate to the rights of the appellant under the contract. Their accumulation would not impair the security.

The second point is that the appellant’s acts did not constitute conversion. The car was taken from the garage in which it was stored and removed to the garage of the appellant, and remained in its torn-down condition. The evidence not being sufficient to entitle the appellant to take possession of the car under the insecurity clause in the contract, its taking was wrongful and in violation of the rights of the respondent.' The taking being wrongful and without justification, no demand was necessary as a condition precedent to the right to maintain an action for conversion. There is nothing in the evidence that would justify the conclusion that the respondent had acquiesced in the taking or waived his right to wage an action for conversion without previously having made a demand. It is true that, after the car had been taken by the appellant, he went to its garage and requested an officer or employee to accompany him to the room where the automobile was stored, in order that he might get his license plates. This circumstance, however, would not amount to an acquiescence in the original taking, or a waiver of his right to claim a conversion.

The respondent excepted to the findings and conclusions upon which the judgment was based, and now claims that the damages awarded were not measured by the correct standard. The trial court found that, at the time of the conversion, the automobile was of the value of $700. The evidence shows that there was a balance of the purchase price which had not been paid in the sum of $324. The rule is that, where the conditional vendee sues the conditional vendor for conversion, “he can recover only the value of the chattel less the unpaid portion of the price.” 28 Am. & Eng. Ency. Law (2d ed.), p. 731. Under this rule the respondent was not entitled to> recover $700, the value of the car at the time of the conversion, as found by the trial court. He was only entitled to the difference between $700 and $321, which would be $376. The respondent seeks to meet this objection by asserting that the appellant is now claiming an offset or counterclaim without having pleaded the same, but there is no element of counterclaim or offset in the appellant’s position. The question on this branch of the case was the amount of damages which the respondent was entitled to recover. The appellant has a right to invoke the rule of law above stated and secure a reduction of the judgment. The cause will be remanded to the superior court Avith direction to enter a judgment in favor of the respondent in the sum of $376.

Judgment modified.

Holcomb, C. J., Mackintosh, Parker, and Mitchell, JJ., concur.  