126 Minn. 176 | Minn. | 1914
Plaintiff appealed from an order denying a new trial, after dismissal by the court on the trial for failure of proof.
The action was to recover damages for breach of contract relating to sale of standing timber. Defendant offered no proofs, and the facts established by plaintiff here material, all of which were germane under the pleadings, may thus be stated:
On May 6, 1902, the Northern Pacific Bailway Co. contracted to sell to one Sargeant, 52,000 acres of timber land in the state of Washington, agreeing to deed to him upon his later making specified deferred payments. This contract contained the following provision :
“No assignment or transfer of any interest of, or in, this agreement or said premises, less than the whole, will be recognized by said party of the first part under any circumstances, or in any event whatever, and no assignment shall be binding upon the company unless approved by its assistant land commissioner.”
Sargeant assigned the same, and through various mesne transfers defendant succeeded thereto prior to October 13, 1902, on which date it and plaintiff’s predecessors entered into the contract upon which this action is predicated. By it defendant sold to plaintiff’s assignors all merchantable timber standing on the land, together with the right of removal. The vendee paid $7,500 cash, agreed to establish a mill on or before May 1,1903, and that it would also, prior to November 1, 1903, and annually thereafter, cut and remove from the land
1. Plaintiff claims the court erred at the outset of the trial in re
2. Plaintiffs theory for recovery of damages was that the attachment proceedings, the assignment to the Columbia River Lumber Co., the mortgage to Wellcome, and the conveyance to the Columbia Eiver Lumber Co., were severally breaches of the contract, entitling it to full damages, and, further, that in any event it was entitled, as for money had and received, to recover the $7,500 cash payment, its expenses incurred in preparation, and for taxes paid. Either claim must necessarily be founded upon some breach of the contract by defendant, and this pivots primarily on the proposition that, because of the restrictions on alienation contained in the excerpt quoted from the Sargeant contract, plaintiff acquired from defendant no title to the timber, but merely a license or right to cut which was rendered ineffectual by the attachment and other breaches assigned, whereby it was prevented from performing and thus suffered loss. We hold the contract one of sale, and not of license. Mathews v. Mulvey, 38 Minn. 342, 344, 37 N. W. 794; J. Neils Lumber Co. v. Hines, 93 Minn. 505, 101 N. W. 959; Clark v. B. B. Richards Lumber Co. 68 Minn. 282, 71 N. W. 389. The provision of the Sargeant contract cannot be given the effect claimed for it. Sargeant undoubtedly acquired the equitable title to the timber, and this passed to defendant, and in turn to plaintiff. See Johnson v. Eklund, 72 Minn. 195, 199, 75 N. W. 14; McPheeters v. Ronning, 95 Minn. 164,103 N. W. 889; Grigg v. Landis, 21 N. J. Eq. 494. The evident pmrpose of the restriction was to prevent partial assignments of the contract and piecemeal transfers of the land, and not to restrict its development. Besides, plaintiff’s contract did not contemplate acquisition by it of title to the land itself. Under plaintiff’s theory, had defendant sold the wild grass growing on the property, such would have been invalid — a position manifestly untenable, yet on a parity with the present contention.
We hold that under the contract with defendant plaintiff acquired title to the timber. Nor was the action for commissions, with its at
Plaintiff relies largely on the opinion on a former appeal, holding its original complaint good on demurrer (See 111 Minn. 418, 127 N. W. 395, 923), the claim being that it established the law of the •case. The gist of the holding there, however, was that it did not conclusively appear from the complaint that the attachment, judgment, and sale of the land in the broker’s action did not interfere with plaintiff’s performance of the contract, while it does now so .appear from the proofs. Consequently what is said in the reported •case is of no avail to plaintiff, and. is not inconsistent with our determination.
Order affirmed.