54 Wash. 657 | Wash. | 1909
This is an action of replevin. By his complaint, plaintiff alleges in substance, that on September 12, 1907, and for a long time prior, he was and still is the owner and entitled to the possession of 149,764 feet, board measure, of lumber, and 44,800 lath, of the total value of $3,395.61, which was then, and at the commencement of the action, in the possession of the defendants, at the sawmill heretofore known as the Meyers Falls Lumber Company sawmill, near the town of Meyers Falls, in Stevens county; that on or about September 13, 1907, he demanded possession of said lumber and lath from the defendants, which they refused and'still refuse to deliver to him; and they wrongfully detain the same, to his damage in the sum of $100. Judgment is prayed for in the usual form, in the alternative, and also for $100 damages for the wrongful detention. The answer of defendants is in substance a denial of the material allegations of the complaint.
The action was commenced on October 31, 1907, at which time the plaintiff, by delivering to the sheriff affidavit and bond in usual form, caused the sheriff to take into his posses
The facts which are necessary for our consideration are either admitted or conclusively proven, and may be summarized as follows: Appellant bases his right to recover upon the alleged wrongful taking from his land by the Meyers Falls Lumber Company and by respondents, of sawlogs which he claims have been converted into lumber and lath in the quantity alleged in his complaint, though it is not claimed that the lumber and lath manufactured from appellant’s logs can be identified, nor that the lumber and lath taken by the sheriff was produced from his logs. During the summer and fall of 1906, the Meyers Falls Lumber Company was engaged in logging from the land of L. W. Meyers, the father of appellant, from whom it had purchased the standing timber thereon. Appellant is the owner of land adjoining and immediately to the north, with standing timber thereon. While' cutting and removing the timber so purchased from
The sawmill was running in the fall, up until November 5,. when it stopped for the year. A considerable portion of the logs, irrespective of where they came from, had then been sawed into lumber, and some of the lumber had been shipped out to market before December 8, 1907, on which date the Meyers Falls Lumber Company sold out to respondents, conveying to them all the remaining lumber and loose logs. One Gray had been foreman for the Meyers Falls Lumber Company, and whatever knowledge it had of the cutting of logs upon the land of appellant was only such as could be imputed to it by reason of such agency. After the sale to respondents, Gray continued for a time to act as foreman for respondents, and in removing the remainder of the logs to the mill from the land of L. W. Meyers, caused to be removed' to the mill a few remaining logs from appellant’s land which had been cut before the sale. It is not claimed that any trees upon appellant’s land were cut down after the sale. The identity of these few logs thus became lost as the others had. This occurred during December immediately following the sale.
Neither of the respondents had any knowledge of any of the logs having come from appellant’s land until after their identity had become entirely lost, the first information received by them being by a letter from appellant, dated January 18, 1907, wherein he claimed that the logs had been, taken from his land by the Meyers Falls Lumber Company, and that the same were then in the log ricks or lumber yards of respondents, as successors of that company, and notifying them that he would claim the product from his timber in whichever form it might be. No demand was made in the let
About April 1, 1907, the mill again started sawing the logs into lumber. On June IS, 1907, appellant notified respondents by letter of the amount of the lumber and lath he had ascertained the logs taken from his land would make, and claimed the same was worth $3,398.33. No demand was made for lumber or lath, though this letter might be construed as a demand for the value, as he states therein: “I shall expect a settlement of this account soon.” At that time, according to his own statement, all of the logs from his land had been sawed into lumber. Appellant never made demand for any logs, but on September 12, 1907, made his first demand for the lumber and lath he seeks to recover by this action. Thereafter, on October 31, this suit was commenced and seizure made by the sheriff. Just what proportion the logs from appellant’s land bore to the whole quantity of logs they were commingled with, is not very certain, but appellant estimates the whole at 2,000,000 feet or more; so, according to his own figures, the quantity from his land was a comparatively small part of the whole. We have no evidence in the record as to the kind of lumber the logs from appellant’s land were sawed into, other than his own statement, or rather opinion. The following from his cross-examination embodies the substance of his knowledge on that subject:
“Q. Do you know . . . how much of it was cut into finishing lumber? A. I do not. Q. Do you know how much was cut into flooring ? A. I do not. Q. How much was cut into ship-lap? A. I do not. Q. Into siding? A. No, sir. Q. And how much into common lumber? A. No, sir. Q. You don’t know anything about that? A. No, sir; only the average cut that such timber would make. Q. And that it might be manufactured into this quality? A. Yes, sir. Q. As a matter of fact*662 the Gerhart-Bradrick Lumber Co. [respondents] had three different yards at Meyers Falls, didn’t they? A. They did. Q. Do you know into which particular yard your lumber went? A. Not in any one yard, no. The clear lumber and high grades went into, one, the second qualities went into the other and the rest went into another. Q. As a matter of fact you knew all of this at the time you made that demand? A. Yes, sir. Q. That it was impossible for the Gerhart-Bradrick Company to have segregated out any logs that came from, your land, and that it was impossible to segregate any lumber that came from those logs? A. Yes, sir.”
Respondent Bradrick, while testifying as a witness for ap-r pellant, said they took over from the Meyers Falls Lumber Company approximately 750,000 feet of logs, which, according to appellant’s estimate of the whole, was less than half,The balance, more than half, was evidently sawed into lumber before the sale. He also testified, while a witness for appellant, that this lumber was being shipped out during the winter months, and that in the spring of 1907 they had the yards quite well cleaned of lumber, and also continued to ship after the starting of the mill in the spring. He could not say that there was any lumber in their yards on September 12, the time of the demand, which came from the 750,000 feet of logs taken over from the Meyers Falls Lumber Company.
The principal contention of the learned counsel for appellant, as we understand them, is that the original taking of the logs from appellant’s land, mingling them with other logs, and manufacturing them into lumber, was willful and with full knowledge of the invasion of his rights; and therefore the fact that his timber was thus changed in form, and the value thereof increased, did not change the title to the property, so as to destroy his right to recover possession thereof; and even though the identity of the property is lost, he has the right to recover property of the kind and quantity into which it was converted, though it may be physically other property, in whole or part.
We will not enter into the question of the knowledge and
“Title to chattels is not changed by bestowal of labor or skill upon them, by a willful wrongdoer, in manufacturing them or changing them into a commodity of another kind. No matter how great the transformation may be, the true owner may follow and reclaim his materials as far as he can prove their identity
as stated in the syllabus to Silsbury v. McCoon, 3 N. Y. (Comstock) 379, 53 Am. Dec. 307, which is cited and quoted at length, in Cobbey on Replevin (2d ed.), § 909, as the leading case in this country on the subject. In that case the court, referring to the agreement of the common law with the civil law in certain respects, says further,
“They agree in another respect, to wit, that if the chattel wrongfully taken, afterwards come into the hands of an innocent holder, who, believing himself to be the owner, converts the chattel into a thing of different species so that its identity is destroyed, the original owner cannot reclaim it. Such a change is said to be wrought when wheat is made into bread, olives into oil, or grapes into wine. In a case of this*664 kind the change in the species of the chattel is not an intentional wrong to the original owner. It is therefore regarded as a destruction or consumption of the original materials, and the true owner is not permitted to trace their identity into the manufactured article, for the purpose of appropriating to his own use the labor and skill of the innocent occupant who wrought the change; but he is put to his action for damages as for a thing consumed.”
See, also, Cobbey, Replevin (2d ed.), § 396; Wells, Replevin (2d ed.), § 216; Schouler, Personal Property (3d ed.), § 49.
This leads us to inquire concerning respondents’ knowledge and good faith in acquiring the logs and sawing them into lumber and lath. We have seen that they had no knowledge whatever of any claim of appellant until January 18, 1907, some considerable time after the purchase of the logs and lumber from the Meyers Falls Lumber Company and the loss of the identity of all the logs by being commingled with a much larger mass of others, and the sawing of a considerable portion thereof into lumber. Counsel for appellant argue that the knowledge of Gray and his removal of the few remaining logs, already cut, from the land of appellant to respondents’ log ricks, soon after the sale, while he was in their employ, must be imputed to respondents, and their good faith and honesty of purpose judged as though they actually knew these few logs were thus taken from appellant’s land. The knowledge of Gray as to any of these logs coming from the land of appellant was acquired by him long before his employment by respondents and was not communicated to them, nor did they have any knowledge which would put them upon inquiry, or would raise the slightest suspicion that their employee was trespassing upon appellant’s land. We think, under these circumstances, the rule that knowledge which an agent has acquired in business other than that of his principal cannot be imputed to the principal, should apply here. Taylor v. Taylor (Texas), 29 S. W. 1057; Pringle v. Dunn, 37 Wis. 449, 19 Am. Rep. 772; Wheeler v. McGuire, 86 Ala. 398, 5 South. 190, 2 L. R. A. 808; Pepper & Co. v. George,
It is apparent from the authorities that the good faith and honesty of purpose with which the one acquiring the property and working the change therein has acted is the controlling influence in determining his title to the property in its changed form. We do not think one’s good faith should be tested by any technical rule of imputed or constructive knowledge, when he has no actual knowledge and no knowledge which would put a reasonably prudent man on inquiry. A man’s motives cannot be affected by a fact of which he has no actual knowledge, or no knowledge which would suggest inquiry relative thereto. We think the facts of this case show beyond controversy that respondents had no knowledge of any kind of the claim of appellant until long after the identity of all the logs had become lost.
So far, we have considered the question of respondents’ good faith touching their acquiring of the logs and lumber, up until the 18th day of January, 1907, when appellant wrote to them that his logs had been taken by the Meyers Falls Lumber Company and that they were in some form among respondents’ logs or lumber, but without any demand therefor. At this time, we are to remember, the identity of the logs had become entirely lost without any fault of respondents, a large part of the total mass, probably half or more, had been sawed into lumber, and a considerable part of that lumber shipped out to market, and it was impossible to tell what portion of the logs from appellant’s land went into that lumber.
Nothing further was communicated by appellant to respondents until June 15, 1907, when he notified them of the quantity of lumber and lath the logs from his land would make, as he estimated; claiming the value thereof in its manufactured form to be $3,398.33, and that, using his own words, “I shall expect a settlement of this account soon.” At this time, according to his own statement, all of the timber
“The tendency of the courts in applying the rule . has been to require of the plaintiff in such cases a reasonable diligence in asserting his rights, and where the defendant is not a willful wrongdoer, without the shadow of legal excuse, this should always be required of plaintiff.” See, also, Wells, Replevin (2d ed.), § 217.
We believe appellant’s delay in claiming the property, as shown by the undisputed facts, should have great weight in the determination of respondents’ rights in this case. It is not pretended that the lumber from appellant’s logs can be
The exact limits of the application of this exception are not very clearly defined, some of the cases going so far as to allow the claimant to take his proper quantity from a mass of wood, or logs, but only where the kind and quality of each owner were alike. This is not a question of appellant’s taking a quantity of logs from a common mass. Conceding that his logs were in kind and quality like the balance of the others (some two million feet) which they became commingled
No authority has been called to our attention, and we think there is none, holding a claimant to have the right to take from a common mass with which his property has lost its identity without fault of the one from whom he claims, where the property has undergone such physical change as in this case; especially when he has stood by and watched the gradual conversion into something much more valuable, of varying kinds and values, without making claim or demand for his property in specie, until after such change has occurred, as this appellant has done. We think under the facts here admitted or conclusively shown touching the conduct of both the appellant and respondents, the former cannot lawfully recover the lumber and lath claimed by him.
This brings us to the question of whether or not the judgment of the lower court should be in all respects affirmed, or the cause remanded with instructions to grant a new trial, as contended for by learned counsel for -appellant, in the event of our conclusion that appellant is not entitled to recover the property in specie, their contention being that the cause should be sent back for retrial as in the nature of an action for damages for wrongful conversion of personal property. This contention, it seems to us, is fully answered by the
“The primary object of the action of claim and delivery, •under the code, is to recover the possession of personal property in specie, and the gist of the action is the wrongful detention of the property by the defendant. In such an action it is necessary for the complainant, in order to state a cause of action, to allege that the property, recovery of which is sought, is wrongfully detained by the defendant (Bal. Code, §§ 5418, 5419). And a failure to prove the allegation must of necessity be a fatal variance. True, the action has as its secondary object the recovery of the value of the property in case delivery cannot be had, but the purpose of this is to prevent the action from becoming fruitless or ineffectual by reason of the property being lost, destroyed or disposed of by the holder, after action brought. It never becomes the primary object of the action, nor does it change the action into one for damages for the tortious taking and conversion of personal property.”
This being purely an action in replevin to recover specific personal property, it seems plain that when the right to recover such property is determined adversely to the plaintiff, all other alternative or incidental relief which might be granted in that action must necessarily fail also.
We think that the learned trial court correctly disposed of the case, and that its judgment should therefore be affirmed. It is so ordered.