Eistrat v. Brush Industrial Lumber Co.

McCOMB, J.

From a judgment in favor of defendants after trial before the court without a jury in an action to recover damages for conversion and injury to property, plaintiff appeals.

The evidence being viewed in the light most favorable to defendants (respondents) discloses that on or about August 2, 1948, plaintiff entered into an agreement with Jones Lumber and Mill Company (hereinafter referred to as the vendee) by the terms of which plaintiff gave vendee the right to cut timber on certain property owned by plaintiff. This contract contained among others the following provisions i

“Purchaser is to comply with all California State laws and California State and United St.ates Forestry Rules and Regulations pertaining to logging. All necessary cleanup and fire protection shall be at the Purchaser’s expense.

“Purchaser agrees that no title or ownership of any timber shall pass from Seller until after the timber is cut.”

Thereafter, the vendee without complying with the provisions of the contract relative to complying with state and United States forestry rules cut timber on plaintiff’s land, removed it and sold it to defendants; plaintiff upon dis

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covering the fact that vendee was removing the timber from his land without complying with the forestry rules went to defendants and told them that vendee had not complied with the forestry rules and had therefore violated the contract of August 2, 1948.

After discussing the matter with defendants plaintiff stated he did not want to terminate his contract with vendee and he would not hold defendants liable “in any way” in connection with his dispute with the vendee.

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Subsequently vendee was adjudicated bankrupt and in the proceedings, to which defendants were not parties, the federal court found that all rights of vendee in and to the contract of August 2, 1948, had been terminated not later than October 10, 1948, due to vendee’s failure to comply with the terms of the contract relative to observing the forestry rules.

December 9, 1948, plaintiff filed an action in Tulare County, California, against vendee for the purpose of obtaining a judgment that the agreement between plaintiff and vendee had been terminated and asking that title be quieted to the real property from which the timber had been removed, and to recover certain monies due for timber removed from the property. In such action plaintiff levied a writ of attachment upon defendants herein for an amount which it owed vendee for lumber purchased from him. Thereafter the present action was instituted and the trial court found in favor of defendants.