168 P. 947 | Mont. | 1917
delivered the opinion of the court.
In October, 1912, John Derr contracted to sell to the Dover Lumber Company not less than 400,000 feet of sawlogs to be cut from standing timber then owned by him. The logs were to be measured or sealed by a scaler to be employed by the company, but who was to be boarded at Derr’s expense. The contract specifies the several lengths into which the logs were to be cut, the percentage of white and yellow pine, respectively, the quality of logs, and the price. The following portions of the contract are material here:
“Time of payment and manner of doing so as follows: $3.00 per M feet on skids $4.00 per M in Blue Creek; balance to be paid when logs are driven and delivered in the Clark’s Fork River; logs scaled during the month to be paid on the 15th day of the month following sealing and delivering; balance or —pet. to be held back by the party of the second part from party of the first part until full and complete settlement is made for all labor and team work done on logs, and satisfactory proof that same has been done. * * * All logs shall be bark-marked ‘F’ and have the end marked as designated by party of the second part. The logs must be bark-marked and end-marked before they are scaled. Life of foregoing agreement to continue up to and including driving season of 1913. * * * If logs are not delivered in 1913, $1.00 per M feet shall be deducted from contract price. ’ ’
In January, 1914, more than 400,000 feet of these logs were at Blue Creek Landing and in Blue Creek, upon which the Dover Lumber Company had paid to Derr $7 per 1,000 feet, or a total of $3,033.80. Whitcomb Bros., creditors of Derr, then attached the logs as the property of Derr, secured a judg
“5. The logs were bark-marked by said Derr as they were cut in the woods.
“6. The logs were scaled on the skids in the woods monthly, as provided for in the agreement.
“7. The logs were end-marked with an ‘X’ by John Derr, as designated by the plaintiff, on the rollways at Blue Creek Landing, on the bank of the Blue Creek, which landing was .from a mile to a mile and a half from the place where said logs were cut from the trees. * * *
“13. None of the logs here in question had ever been released from said Blue Creek or Blue Creek Landing, nor driven or floated into, nor otherwise delivered into, the Clark’s Fork River.”
. The parties also included as a part of the agreed statement the following:
“12. No person, other than Derr, was ever in actual possession of the logs prior to the sale under execution, except under the said writ of attachment and execution, unless the said act of sealing hereinabove referred to constituted such actual possession.”
The trial court found for plaintiff and defendants appealed.
Section 6128, Revised Codes, provides: “Every transfer of personal property * * * is conclusively presumed, if made
The contract between Derr and the lumber company required the logs to be bark-marked and end-marked with the purchaser’s mark or brand before they were scaled, and to be scaled by an agent of the lumber company. The agreed statement recites that the logs were bark-marked and end-marked, and that they were scaled in the woods, as provided for in the agreement. There is such a paucity of facts in the agreed statement — such an absence of material facts which it is perfectly apparent could have been supplied — that this ease is unnecessarily given the appearance of presenting a very close question, viz.: Was there such a delivery and change of possession as will satisfy the requirements of section 6128, above? We are not informed when the logs in controversy were cut and banked. More than a year elapsed between the date of the contract and levy of the writ of attachment, and in, the meantime the life of the contract expired by its own terms. We are left to make application of the rule of the statute to the very meager facts presented by the record and such inferences as may be drawn from them.
The trial court found for the plaintiff, and we indulge the
It is the theory of appellants that Derr was required to deliver the logs in Clark’s Fork River, and that title did not pass to the lumber company because such delivery was not made. This contention ignores a salient provision of the contract. That
It is apparent from the contract, considered in its entirety, that if Derr was required to move the logs to Clark’s Fork River, that task was to be performed by him as the agent or employee of the plaintiff, and that his failure in this regard had the effect only of reducing the price of the logs $1 per 1,000 feet.
The expression in the authorities to the effect that, if any-
It is not material whether Derr and the lumber company observed throughout the precise order mentioned in their contract for marking, scaling and moving the logs. The facts are made to appear that the logs were identified by the purchaser’s mark or brand, were removed from the place where they were cut to Blue Creek, were turned over to the lumber company to be scaled, to the end that the exact quantity for which payment should be made might be determined, the major portion of the purchase price was paid accordingly, and in this situation the life of the contract expired. Jjust what moré could have been
Possession of the logs in the hands of the scaler, who was the agent of the lumber company, carried with it the prima facie presumption of ownership in the company (Rev. Codes, see. 7962, subds. 8 and 11), and in the absence of any evidence to the contrary the fair presumption obtains that such possession continued to the date of the seizure under the writ of attachment (Rev. Codes, sec. 7962, subd. 32).
Paragraph 12 of the agreed statement is not a statement of fact, but a statement of mixed law and fact. Having recited the several acts done by the parties, it was a question of law whether those acts constituted possession in the purchaser.
The statute does not speak of actual possession, but of actual change of possession. Legal possession may be either actual or constructive.
Upon facts very similar to those disclosed by this record, it was held in each of the following cases that there was such delivery and change of possession as to meet the requirements of the rule of our statute: Sanborn v. Kittredge, 20 Vt 632, 50 Am. Dec. 58; Hutchins v. Gilchrist, above; Birge v. Edgerton, 28 Vt. 291; Kingsley v. White, 57 Vt. 565; Bethel Steam Mill Co. v. Brown, above; Hagins v. Combs, above; Williamson v. Richardson, 205 Fed. 245, 123 C. C. A. 427; Dubois v. Spinks, 114 Cal. 289, 46 Pac. 95.
2. Making a single contract or purchase does not constitute
The judgment is affirmed.
Affirmed.