Forgay v. Plum

FINCH, P. J.

This is an appeal by the defendant Plum, on the judgment-roll alone, from a judgment in favor of the plaintiffs.

It appears from the complaint that in May, 1926, the plaintiffs entered into a contract with A. P. Newhart, by the terms of which they agreed to sell him all the merchantable timber on the Forgay ranch, and also their saw-mill and equipment,' for which timber he agreed to pay “$1 per thousand feet, board measure, sealed . . . upon delivery at pond, ’ ’ payments to be made semi-monthly. The purchaser also agreed to pay at the rate of $1 per thousand feet of lumber sawed for the use of the mill until such payments amounted to $7,500, when he was to be given a bill of sale for the mill. The title to the lumber was to remain in the sellers until paid for. Payments were to be made “to the credit of the party of the first part at the Indian Valley Bank.” The buyer was to commence the operation of the mill “on or before the 15th day of June, 1926, and to diligently continue the operation

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thereof ... to full capacity.” The buyer agreed to keep insured “all lumber piled or stored in an amount equal to that due” the sellers, the insurance policies to be payable to them to the extent of their interest. A supplementary agreement was subsequently executed, but its terms are not material here. Time was not made of the essence of the contract, nor was there any provision for a forfeiture contained therein. Newhart assigned to F. 0. Wolpert, and he to the defendant, the assignment to the defendant being made prior to May 6, 1927. The breaches of the contract alleged in the complaint. are as follows:

The defendant “did log, cut and manufacture into lumber about 170,000 feet ... of lumber,” by reason whereof there became due to the plaintiffs the sum of $850 on the fifth day of July, 1927. On their demand for payment of that sum the defendant “informed said plaintiffs that he did not intend to pay said sum until said lumber was sold and shipped, and . . . that it was his intention to continue to fall and manufacture timber from said premises, but that none of the same would be paid for until sold and shipped.”. The defendant failed to insure the lumber “piled or stored.” He “has failed to operate said sawmill diligently ... to full capacity thereof, and that since the first day of July little if any timber has been sawed at said sawmill, and that said mill is now closed down and not being operated to the full capacity, or at all.”