Hart-Wood Lumber Co. v. Bonaly

KERRIGAN, J.

This cause having been transferred to the district court of appeal, the judgment was by that court reversed, after which, upon the petition of defendants, a hearing in this court was granted. Upon further consideration we are satisfied that the conclusion arrived at by the district court of appeal is correct, and in this opinion we shall, in the expression of our views, resort freely to the opinion filed by that court.

Plaintiff sued in claim and delivery to recover from defendants the possession of 62,000 feet of lumber of the admitted value of $3,000. A second cause of action for the recovery of a hoist and cables was conceded by the defendants. The trial was had upon the issue of the title and right to possession of the lumber, upon which issue the trial court found in favor of the defendants Booth and Bonaly. The appeal is confined to an attack upon the findings of the trial court.

The facts are that the defendant Booth was the owner of certain timber land located in Mendocino County which the defendant Bonaly had agreed to purchase; that upon his contract for the purchase of the land there remained unpaid to the defendant Booth the sum of $10,000. While the title was in this condition the two defendants Booth and Bonaly, on February 7, 1920, entered into a contract with one Rae, wherein they agreed to sell to Rae a minimum of 2,000 cords of timber located upon said land, and to be selected by Rae, he to pay therefor the sum of $1.50 for every cord of 128 cubic feet “which is cut, sawed, chopped or milled and moved from said property.” The payments therefor were to be made to the Bank of Willits to the credit and for the account of the defendant Booth until the total amount of $10,000 had been paid therefor, and thereafter the payments were to be credited to the account of the defendant Bonaly. No time for these payments was fixed except that they were to be made at the same time shipping receipts were deposited with the bank showing shipments through '■the Northwestern Pacific Railroad from the town of Willits. On the

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twenty-eighth, day of February, and before the work of cutting the timber commenced, this contract was modified by all the parties thereto to the extent that Rae was given the option to pile any lumber or wood upon the land mentioned for a period of sixty or ninety days, provided that payment therefor should be made within seven days after the same had been piled, and that such payments should be made at the Bank of Willits, as provided in the original agreement, and Rae was also authorized to retain the original shipping receipts and to leave a copy of the same at the Bank of Willits, thus relieving him of the necessity of depositing the original shipping receipts with the bank at the time of payment. By the agreement of the parties of February 7th Rae was given free access to the land “for the purpose of falling, chopping, cutting, sawing or milling the timber thereon, and of handling, transporting, hauling and selling or disposing of said wood or lumber in whatever manner he may see fit.” On the thirteenth day of February following the execution of the original contract the defendant Bonaly alone and Rae entered into a private agreement, wherein Rae agreed to deliver to Bonaly, without charge, 25,000 board feet of rough lumber, “sizes and dimensions to be hereafter designated by Bonaly, within the period of one year from the date hereof.” On the third day of March following plaintiff and Rae entered into a contract wherein Rae agreed to sell and deliver certain quantities of lumber from the property mentioned to plaintiff, at prices therein specified. Rae also agreed to pile the pine lumber cut by him on the premises until the same should be shipping dry and until he should receive an order from the plaintiff to make shipment. Plaintiff agreed to and did advance to Rae certain sums of money which were to apply on the purchase price of the lumber. Simultaneously with the execution of this contract of March 3d Rae assigned to the plaintiff his contract with the defendants Booth and Bonaly as security for all moneys advanced or to be advanced by the plaintiff to Rae. Rae entered the premises, erected a mill, installed machinery, and proceeded to cut down trees and to manufacture the same into lumber. Nine carloads of this lumber were shipped by Rae to the plaintiff and 62,000 feet were piled at the mill on the premises. The full purchase price due the defendants for trees felled by Rae was paid