Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1956 No. 228 -
Attorney General Don Eastvold


Intent to hinder, delay, or defraud, being elements of the crime, must be proved as fully and completely as other elements to bring act of selling within prohibition of the statute.

                                                                  - - - - - - - - - - - - -

                                                                  March 21, 1956

Honorable Lee J. Reynolds
Prosecuting Attorney
Clallam County
Kuppler Building
Port Angeles, Washington                                                                                                               Cite as:  AGO 1955 No. 228

 Dear Sir:

             In your letter of February 27, 1956, previously acknowledged, you have requested our opinion as to whether or not a vendee under a conditional sales contract covering personal property, who has sold said property without the consent of the vendor, is in violation of RCW 9.45.060 or 9.54.070 when he has at all times continued payments under said contract in accordance with its terms.

             Our answer is in the negative.


             The two statutes in question read as follows:

             RCW 9.45.060

             "Every person being in possession thereof, who removes, conceals, or destroys or connives at or consents to the  [[Orig. Op. Page 2]] removal, concealment, or destruction of any personal property or any part thereof, upon which a mortgage, lien, conditional sales contract, or lease exists, in such manner as to hinder, delay, or defraud the holder of such mortgage, lien, or conditional sales contract, or the lessor,or who, with intent to hinder, delay, or defraud the holder of such mortgage, lien or conditional sales contract, or such lessor, sells, removes, conceals, or destroys or connives at or consents to the removal, concealment, or destruction of such property, shall be guilty of a gross misdemeanor.

             "In any prosecution under this section any allegation containing a description of the mortgage, lien, conditional sales contract, or lease by reference to the date thereof and names of the parties thereto, shall be sufficiently definite and certain."  (Emphasis supplied.)

            RCW 9.54.070

             "Every person who sells or mortgages any personal property which is at the time mortgaged or upon which any lien has been or may lawfully be filed, without informing the purchaser or mortgagee thereof, before the payment of the purchase price or money loaned, of the several amounts of all such mortgages and liens, shall be deemed to have made a false representation within the meaning of RCW 9.54.010 (2)."  (Emphasis supplied.)

             We will dispose of the question involved in RCW 9.54.070 first.  Said statute is limited to the disposition of mortgaged property or property on which a lien has or may be filed, and since the property here involved was sold on a conditional sales contract, we agree with your opinion that vendee's sale of such property could not fall within its terms.

             Our supreme court, in the case ofState v. Youngbluth, 60 Wash. 383, 384, states the rule as follows:

             "* * * a criminal statute will not be extended beyond its plain terms by construction or implication.  * * *"

             RCW 9.54.070 is, by its terms, specifically concerned with mortgaged property or property which, at the time of said sale, is subject to lien.  The facts stated preclude the possibility of the filing of a lien.  In the case of Duarte v. Minnick, 85 Wash. 539, 543, our court points out that the vendor under a conditional sales contract did not

             "* * * have a mere lien upon the machinery securing the payment of the unpaid portion of the agreed purchase price, but  [[Orig. Op. Page 3]] it possessed absolute title thereto, subject to be defeated by the payment of whatever balance was due upon the agreed purchase price.  * * *"  (Emphasis supplied)

             See, also, Winton Motor Carriage Co. v. Broadway Automobile Co., 65 Wash. 650.

             Black's Law Dictionary, 2nd Ed. at page 1052, defines conditional sales as follows:

             "Conditional sales are distinguishable from mortgages.  They are to be taken strictly as independent dealing between strangers.  A mortgage is a security for a debt, while a conditional sale is a purchase for a price paid, or to be paid, to become absolute on a particular event; or a purchase accompanied by an agreement to resell upon particular terms."

             It is further worthy of note that in the case ofLahn & Simmons v. Matzen Woolen Mills, 147 Wash. 560, our court has held that in a conditional sales contract the relation of debtor-creditor is not created.

             To summarize, since a conditional sale is neither a mortgage nor a lien as contemplated by the statute, the stated situation does not fall within the scope of said statute.

             With regard to a violation of RCW 9.45.060 heretofore quoted, we find our supreme court in the case of State v. Brummett, 98 Wash. 182, 189, says:

             "One of the elements of the crime charged was the intent to hinder, delay or defraud the holder of the conditional sale contract.  It was as necessary to prove this intent as to prove the removal.  * * *"

             Under the facts set forth in your letter, and since the only concern of the vendor under such a contract is to obtain his purchase price, it is difficult to see how said sale ‑ in so far as said vendor is concerned ‑ is intended to hinder, delay or defraud him.  It is obvious, of course, if said contract is on file, that the subsequent purchaser takes only such rights as the original vendee has in said  [[Orig. Op. Page 4]] property.  There are many possible variations in fact, which if fully stated, might change our opinion, but in so far as the basic law is concerned, we could not say under the facts set forth that this vendee is guilty of a violation of the referenced section.

             We hope this information will be of assistance to you.

 Very truly yours,
Attorney General 

Assistant Attorney General