7 Wash. 41 | Wash. | 1893
The opinion of the court was delivered by
1. Th'e appellants now complain of the action of the superior court because of the manner in which it permitted the respondent to amend his complaint under the direction of this court in Bard v. Kleeb, 1 Wash. 370 (25 Pac. Rep. 467). The new complaint showed that the property covered by the contract had been delivered to the appellants, and had been by them resold to third parties; that a tender of a conveyance in writing had been made to them; and that the sum unpaid under the contract had fallen due long before the date of the pleading. All of these matters could have been covered by the original complaint, had the facts now stated been past events, and the respondent would have had his choice, either to foreclose the lien agreed to be given to him through a mortgage, or to have his judgment generally against the appellants. The latter course is now forced upon him, since the appellants have put it out of their power to make the mortgage for which their contract called. Moreover, as was said in the former decision, all parties have from the beginning treated this as an action at law for money, and not as an equity case, and they are bound by their action.
2. A vast amount of the trouble in this case has grown out of the attempt of the appellants to bind the respondent to a conclusion of law unnecessarily stated in his complaint, viz., that at the date of his contract he was the owner and possessor of certain property, the subject of the contract. But even if taken as a statement of fact, rather than law, this allegation was not material. Respondent, on
3. The next complaint is, that the contract called for the title to the three parcels of standing timber mentioned, which was not forthcoming. Against this, the respondent contends that he was only to convey his right, title and interest, whatever it was — substantially a quitclaim. The materiality of this contention is, that the owner of one tract (Perry) refused to permit the appellants to take any timber under the agreement made with respondent. The owner of the second tract (Guilliams) delivered a portion of the logs contracted for, and then refused to deliver any more, on the ground that his contract was a merely verbal one, which he could break at his pleasure; and the third tract (Morrill) fell 240 acres short. The contract clearly showed that the Perry and the Guilliams timber was not undertaken to be sold at all, but that, in substance, an assignment of the rights of the respondent under his agreements with the two landowners was to be made, for it was recited that these parcels of timber were to be “transferred according to the contract now existing between me and” the two owners, and the appellants bound themselves to carry out these contracts. As to the Morrill tract, the language of the contract was different, being: “All the cedar timber now on sec. 27, ’ ’ without any qualification or reference to any other contract. Respondent’s title to the cedar on 400 acres of section 27 is not, however, assailable, for at all times when he was required to have the title to that much of it he had it by deed of wai’ranty, and no showing is
The Guilliams contract ivas an entirely different matter. That was an agreement on Guilliams’ part to cut down all the cedar timber on his land, and deliver the logs to respondent at his mill, at §4.50 per thousand feet. It was a merely verbal contract, but it respected the sale of chattels only, viz., logs; and, as a considerable portion of the contract to sell had already been performed, there was a full compliance with the statute of frauds in that instance. Owens v. Lewis, supra; Smith v. Surman, 9 Barn. & C. 561. When appellants took possession of the mill Guilliams continued to deliver logs to them under his contract with respondent, and then refused further delivery because his contract was merely a verbal one. He should have been required to go on, or respond in damages. But in neither the Perry nor the Guilliams case was respondent at fault. He sold and delivered the mills, and put the appellants in the same position with respect to his contracts with those men which he occupied. Appellants, without ivaiting to receive a conveyance in writing (if one was necessary), and without paying the cash agreed to be paid, took possession, and in every way put themselves in the wrong as far as a refusal to pay the price agreed upon Avas concerned; and, finally, they sold out the Avhole property at a large advance. Such property as they took they must pay for, all the troubles about tenders of payment on the one part and of papers on the other having been obviated by the acceptance of the property by the appellants, and their going into possession.
4. The contract called for two engines, one of which Avas described as a portable sawmill engine, of eighteen horse poAver, and the sawmill, etc., situated at a certain place; and the other was a forty horse power engine and boiler, etc.,
5. What has gone before leads to an affir manee of the judgment, but there is one point upon which there should be a reversal, unless there is a voluntary reduction by the
The errors assigned in this case are, in an appellate sense, innumerable. Those we have noticed cover such of them as are material. The others were mostly brought into the record through a wide departure from the actual issues involved.
Dunbar, C. J., and Hoyt and Anders, JJ., concur.
Scott, J., concurs in the result.