Hilger v. Edwards

5 Nev. 84 | Nev. | 1869

.By the Court,

Lewis, C. J. :

Upon a writ of attachment issued from the District Court of the Second District, against one Spencer Gibbons, on the eleventh day of November, a.d. 1868, the defendant, who was then the Sheriff of the County of Ormsby, seized and took into his possession about six hundred cords of cordwood, which is claimed by the plaintiff, and sought to be recovered in this action. The main issue in the ease is upon the title and the right to possession of the wood, the defendant contending that the right of possession is in Gibbons, whilst the plaintiff claims that he is the owner and entitled to its possession. The facts out of which this conflict of right arises may be thus briefly stated: Hilger, on the sixth, day of March, a.d. 1868, purchased of one Henry Osterday all the standing timber on a certain tract of land in the County of Ormsby, at a stipulated sum per cord. A few months afterwards he entered into an agreement with. Spencer Gibbons, the defendant in the attachment suit, whereby it was agreed between them that Gibbons should “ cut and deliver to the party of the second part (Hilger) six hundred cords of good merchantable cordwood, or all the wood that the timber now standing, or being on what is known as “ Dutch Henry’s timber ranch, will make. * * * Said wood to be corded and delivered at or near the mouth or lower end of what is known as Har-rupps’ and Chamberlain’s Elume. * * * All of said wood to be delivered as aforesaid on or before the fifteenth day of' November, A.D. 1868. The party of the second part agrees to procure, furnish, and pay for all the timber upon said ranch; and further, to pay to the party of the first part the sum of three dollars and sixty-two and one-half cents per cord in coin for all the said wood corded and delivered as aforesaid, except one hundred cords, for which he agrees to pay three dollars and seventy-five cents in coin per cord, payment to be made as follows: Three-fourths of the amount of the value of the wood to be paid as fast as delivered as aforesaid, and all to be paid as soon as this agreement ii fully com-, plied with and all the wood delivered as aforesaid. And it is further understood by and between the parties, that in case the party of the second part fails or neglects to make the payments as aforesaid, or within ten days thereafter, the said party of the first part is to be the owner of all the wood corded and delivered as aforesaid ; and the said party of the first part is to have a lien upon all the wood corded and delivered until he is fully paid for delivering the'same.” Then follows this clause: “ It is understood the payment as above stated is not to be made until the seventh .day of November, a.d. 1868, when three-fourths of the wood then corded and delivered as aforesaid shall be paid for, and all to be paid when all shall be delivered; that is, on the first day of December next.”

Whatever right or claim Gibbons had to this wood, if he had any, was acquired under this agreement. And it is quite certain that the only right which he had at the time it was seized upon the attachment against him was a mere lien, or (right to'retain the possession as security for the performance of the contract by Hilger. It is claimed by counsel for defendant that Gibbons was the absolute owner of the wood cut by him. There are certain!y no words of sale in this agreement; nor is there anything in it indicating an intention to transfer the ownership from Hilger, but on the contrary we find stipulations in it utterly inconsistent with the ownership being in Gibbons. Thus it is provided- that he shall have a lien upon the wood until the payment of the stipulated payments by- Hilger. It is hardly to be presumed that he would have claimed a lien upon his own property. Again, it is provided that he shall be the owner of the wood, if the price were not paid by Hilger within ten days after its delivery. Why such provision if Gibbons were the OAvner before such failure ? Indeed, there is not a word in this entire instrument, indicating an intention to transfer the title to the wood to Gibbons, until the failure by Hilger to make the payments according to agreement. At the time the wood was seized none of it had been delivered, hence there could have been no forfeiture of Hilger’s title. He was then at that time the owner of the property, and Gibbons could have had no right except that of a lien upon it, in accordance with the agreement. If the agreement were in force at the time this action was brought, that is, if Hilger were bound by it, and the lien continued, the right of possession would in that case be in Gibbons, and it is possible this action could not be maintained, as it is necessary that the plaintiff, in an action for the recovery of personal property, show that he is entitled to the immediate possession. Rut it is proven in this case that Gibbons had failed to comply with his contract, he not having delivered any of the wood on the sixteenth of November when this action was brought; whereas, it was made his duty to deliver the whole of it on the fifteenth. Here was a breach of the agreement on Gibbons’ part, and Hilger had the right to abandon it entirely. Under a contract so broken Gibbons could at best have no right, except that of a claim for a reasonable compensation for the work done by him. He could not claim the right to deliver the wood after the day specified in the contract, except by the consent of Hilger and a waiver of the breach.. By the failure to deliver the wood on the fifteenth Gibbons forfeited all lights under the contract; and as he had been paid the full value of the work done by him prior to that time, he could claim no lien upon the wood. He could not hold possession of what had been cut in expectation of the future fulfillment of his contract, for he had violated it; nor for wqrk already done, because for that he had been fully paid, Hilger testifying that he had paid its full value.

It is argued,however, that by the latter clause of the agreement Gibbons had until the first day of December to deliver the wood to Hilger. We do not so interpret the instrument; at least it is clear all the wood was to be delivered at the end of the Chamberlain flume by the fifteenth of November, and as it is conceded that was not done, the contract in that particular was therefore violated. But taking the whole agreement together, we are satisfied that the wood was to bo delivered to Hilger on the fifteenth of November, and the last clause was not intended to extend that time but only extend the time of the final payment to be made by Hilger. However, as the wood was not delivered at the flume at the specified time, there was a breach of the contract, ,and Hilger had the right to abandon it, and Gibbons could claim no further rights under it. Had this action been brought against Gibbons he could not avail himself of the right to hold the wood under an agreement which he had not fulfilled on his part; and it is conceded that the defepd-ant stands in no better position than Gibbons would were he the defendant. The seizure of the wood upon the attachment on the eleventh day of November, can certainly constitute no, valid excuse for the failure to deliver it in accordance with the contract. Gibbons, it is .true, may thereby have been prevented from fulfilling his agreement in that respect, but that should not be allowed to affect the plaintiff’s rights. We know of no rule of law which makes legal difficulties of this kind an excuse for a violation of obligations to others. We conclude, then,' that Hilger is the owner of the wood, and as Gibbons had failed to fulfill his agreement, he forfeited all rights under it; and as he has received full payment for what wood has been cut by him, he can have no lien or claim upon it; and the defendant claiming from him has no better right. Hilger is therefore entitled to the possession.

Judgment reversed and cause remanded.

JOHNSON, J., did not participate in the foregoing decision.