I dissent upon two grounds:
First, the majority makes a very definite change in the original opinion and this is based solely upon the petition of the respondents. If the court has in mind to consider the petition to modify or clarify the majority opinion, it should only do so after opposing counsel have had opportunity to be heard. It may be that counsel for appellants have definite and well-founded reasons for objections to the modification or change in the original majority opinion.
My second reason is that the majority, when they held respondents liable, decided that certain amounts were advanced by Allarbe and Ragan Dunnett and improperly used by them. Typical of the holdings are:
"On November 13, 1930, Ragan Dunnett gave Wool Growers a check for $25,000, marked `Kays' sheep.' *Page 732 This was not the money given them by Allarbe. That money had already been spent. This money was part of a loan of $35,000 obtained from the First National Bank of Yakima, or National Bank of Commerce, which $35,000 was deposited in their bank account on November 13, 1930."
"And on December 3, 1930, it issued its check for $17,102.89, in favor of Simcoe Sheep Company, . . ."
"The balance in Ragan Dunnett's bank account on December 3, 1930, immediately prior to the deposit of the $17,102.89 check, was $699.59. On December 5, 1930, Ragan Dunnett used $13,500 of the $17,102.89 proceeds of the loan to Simcoe to pay an obligation owing by them to Guaranty Trust Company."
"Simcoe funds were used by Ragan and Wool Growers to pay this mortgage and the back range fees. On September 4, 1931, Wool Growers sent the bank a check for $10,296.99, the balance due on the Olney note held by the bank, and in November, 1931, used $2,462.91 of Simcoe funds to pay the balance due it from Olney."
"Concert of action grew and developed. Ragan's firm was in desperate need of cash. He acquired more than $42,000 of Allarbe's money. Needing further financing, he got it by bailing Wool Growers out of a couple of bad loans to Kays and Olney. This was of material benefit to both Wool Growers and Ragan. Wool Growers realized in full on a bad loan. Olney's $5,300 back range fees, for which Ragan and wife were sureties, were paid, and Ragan even kept the range. Allarbe's money made these things possible. In other transactions, Allarbe's money, and afterwards Simcoe funds and property, were, with the knowledge, and indeed with the assistance of Wool Growers, so commingled with the funds of Ragan Dunnett that they cannot be segregated, at least under the evidence so far produced in this case. There appear to have been repeated misuses of corporate funds in which both Ragan Dunnett and Wool Growers participated. For example, Ragan should have paid the back Olney range fees. They were discharged by the use of Simcoe's money. Wool Growers paid obligations of Ragan Dunnett to themselves with Simcoe money." *Page 733
If the trial court is given the right mentioned in this percuriam opinion, it may disallow all of the items I have mentioned, which would result in the elimination of the very basis of the majority opinion and render it of no effect.
MILLARD, J., concurs with SIMPSON, C.J.