Wolters v. King

BELCHER, C. The plaintiff brought this action to recover a sum of money, with interest, alleged to be due for lumber sold and delivered by him to defendants. The answer denied all the averments of the complaint. The court found: “That on the eighth day of November, 1892, the plaintiff, at the instance and request of the defendants, sold and delivered to said defendants lumber of the agreed price and value of one thousand and eighteen dollars and twenty-three cents, for which said defendant's promised and agreed to pay to said plaintiff, ninety days after said date, with interest at the rate of eight per cent per annum from and after the expiration of said ninety days.” Thei court further found that no part of the said money had been paid, and that plaintiff was entitled to a judgment therefor.

Judgment was accordingly so entered, from which and from an order denying their motion for a new trial defendants appeal.

[174]It appears that in November, 1892, plaintiff was the owner of five hundred and twelve acres of timber land in Siskiyou county, which he wished to sell. The defendants were copartners, engaged in the business of buying and selling lumber in the city of San Francisco. The Bed Cross Lumber Company was a corporation engaged in the business of manufacturing lumber near plaintiff’s land, and it wished to purchase said land and pay for it in lumber.

On November 1, 1892, the defendant, M. Harris, in his own name but for the benefit of the firm of Harris & Jones, entered into a written agreement with the Bed Cross Lumber Company, by the terms of which he agreed to sell to the lumber company and said company agreed to buy the plaintiff’s said land. The agreed purchase price was five thousand one hundred and twenty dollars,' payable in lumber to be shipped and delivered to Harris by or before the thirty-first day of December, 1893. The lumber was to be taken in payment according to a schedule fixing different values for different grades of lumber. Hpon delivery by the lumber company of sufficient lumber to maleé up the purchase price of five thousand one hundred and twenty dollars, Harris agreed to execute and deliver to said company a good and sufficient grant, bargain, and sale deed of said land.

On the same day, November 1,1892, the plaintiff Wolters and the defendant Harris entered into a second written agreement, which, after setting out the substance of the agreement between Harris and the lumber company, and that the title to the lands described therein was actually vested in said Wolters, and that Harris, in contracting for the sale thereof, acted as Wolters’ agent, contained the following provisions: 1. That Harris should receive the lumber shipped to him by the Bed Cross Lumber. Company and pay Wolters for it at the rates mentioned in the agreement between him and the said company; 2. That Wolters should pay Harris the sura of one thousand and twenty four dollars as a commission for making the sale of the land; 3. That Wolters would sell to Harris all the lumber mentioned or referred to in the agreements at the rates specified therein, and that payment for any shipment made should not be due until the. expiration of ninety days after the delivery thereof to Harris in San Francisco, and that upon all payments not made at.