38 Wash. 435 | Wash. | 1905
This is an appeal from an order granting a new trial. The complaint avers that the plaintiff was, on May 6, 1903, the owner and in the immediate possession of certain shingles, stored in the dry kiln and shed of his mill; that on said date the defendant wrongfully carried away and converted the shingles to its own use, to the damage of the plaintiff in the sum of $3,000; for which amount judgment is demanded. The answer denies the averments of the complaint, and affirmatively alleges that, on the 17th day of April, 1902, the plaintiff was the owner of a certain shingle mill, and that on said date he and the defendant entered into a written contract, of which the following is a copy:
“This Agreement, made and entered into this 17th day of April, 1902, by and between Joseph A. Dennis, of Montesano, Chehalis county, state of Washington, the party of the first part, and The Montesano NationaLBank, of the same place, the party of the second part, Witnesseth: That for and in consideration of. the sum of $2,849.12, to him in hand paid by the party of the second part, the receipt of which is hereby acknowledged, and of future advances to be made by said party of the second part- to the said party of the first part, and of the mutual covenants and agreements hereinafter specified, the said party of the
“The party of the first part agrees to superintend the operation of the shingle mill situate on lot 4, section 7, township 17, west of the Willamette Meridian, Chehalis county, Washington, known as the Dennis Shingle Mill, as continually as possible during the year 1902. The party of the first part further agrees to use all moneys advanced, and to be advanced, for the purpose of supplying said mill with timber and in the payment of the expenses of the operation of the same: All of said timber and expenses to be paid by check drawn on the said party of the second part. That the said party of the first part shall keep all shingles, so manufactured by said mill, insured in an amount as near their full value as possible, the policies made payable in the event of loss to the said party of the second part. It is hereby expressly understood and agreed that all of the timber purchased, as aforesaid, and all of the shingles so manufactured therefrom, shall be and remain the absolute property of the said party of the second part, until all moneys advanced by the said party of the second part to the party of the first part shall have been fully paid and this agreement cancelled, and during the life of this agreement the said party of the second part shall have absolute control of the same, and that in purchasing said timber and in superintending the manufacture of said shingles the said party of the first part shall at all times act under the supervision of the said party of the second part.' The said party of the first part further agrees to pay and discharge all liens or claims against said timber and shingles, so that at all times the same shall be free and clear of any and all claims of any third person or persons whatsoever. The said party of the second part agrees to- furnish sufficient money, in addition to the amount hereinbefore specified, to purchase sufficient material to keep said mill in as continuous operation’as possible, and to pay all the expenses of the operation of said mill, as soon as the same become due: It is further agreed that a settlement shall be had between the parties hereto
It is further alleged that the plaintiff began the operation of the shingle mill under said contract, and continued to so operate until January 1, 1903, when a settlement was had, and plaintiff was found to be indebted to defendant in a large amount, and that the defendant at that time exercised the option given it under the terms of the contract, and continued the same in force; that the plaintiff continued thereafter to operate the mill under the contract, until about May 1, 1903, and that, during all the time of said operation, defendant faithfully performed all the terms of the contract on its part to be performed, by advancing sufficient money to pay to keep the shingle mill constantly supplied with material, and to pay all expenses of operation; but that plaintiff failed to' perform the terms of the contract required of him, by neglecting and refusing to' use all money advanced to him by defendant for the purposes of supplying the mill with timber, and of paying operating expenses; that he also disposed of shingles manufactured under the terms of the contract, and failed to' pay the proceeds thereof to the defendant; that he failed to' keep the shingles insured, refused to' operate the mill under the supervision of the defendant, permitted the shingles and timber to become charged with claims of third persons, and neglected to pay-defendant the amount of his indebtedness to it. It is also alleged that the defendant is the absolute owner, and entitled to the possession, of all the timber purchased under the terms of the contract, and of all shingles manu
Appellant urges error upon two grounds: (1) That the court erred in considering the affidavits of jurors, and in refusing to strike the same; (2) the general ground that it was error to' grant the new trial. We think it is unnecessary to discuss the first ground, since w'e believe it was not error to grant the new trial for other reasons. At the trial the court declined to construe the written contract, and refused to say whether, by its terms, the respondent became the owner of the timber and shingles, or the mere holder of a lien for its advancements. Those questions were submitted to the jury, and they were instructed, in effect, that they should determine the force of the written agreement. They were instructed that, if they found that appellant was to remain the owner of the shingles, and was also to retain their possession, then the respondent would have no right to take them from appellant’s possession.
It was the duty of the court to construe the contract, and not to leave the jury to do it. We know of no reason why it shall not be construed according to its express terms, as the parties have made them. The terms are
The contract in the case of Hurd v. Cook, 75 N. Y. 454, was essentially similar to the one at bar. Tlwo persons, Wait and Sackrider, agreed to stock a sawmill with hemlock logs for one year, and they were also to have the privilege of putting into the mill two million feet of logs, from the lands of the mill owner. Certain prices for cutting and delivering logs to the mill, and for delivering lumber to transportation companies, were specified. Wait and Sackrider were also to make cash advancements to the mill owner from time to time^ After deducting all expenses of logging, manufacturing, and selling, and the amount of the advancements so made, the balance was to be paid to the mill owner. The contract contained the following:
“And it is further agreed by and between th,e said parties that all the logs and lumber manufactured from said logs the said Wait & Sackrider are to have the title to and belong to them absolutely.”
Suit was brought to recover damages for conversion, as
“In connection with such an operation, it was proper that the parties should determine in whom should he the title to the property during the various stages of manufacture
It may also be as well said here, that it was proper for the parties to determine by their
The order is affirmed.