161 P. 97 | Or. | 1916
Lead Opinion
delivered the opinion of the court.
The matter was discussed between the parties for some time and a tentative oral understanding arrived at, and pending the actual execution of the contract Dodge sent cruisers to examine and report upon the Kribs tract, who actually cruised more than three fourths of it before they were driven out by the winter snow. Dodge had their reports before he entered into the contract, and.it is apparent that so far as the cruise had gone it was satisfactory and coincided so nearly with the estimates of Kribs’ cruisers that he was content to accept it. Cox, one of his cruisers who had cruised 2,807 acres, was put upon the stand, and his testimony indicates a substantial coincidence between his cruises and the summary of all the cruises furnished Dodge by Kribs and Jones. Porden, the other cruiser, claimed that he had destroyed the notes to his cruise after furnishing a copy to Dodge, but that copy is not produced by plaintiff and the presumption follows that it would, if produced, have been unfavorable to plaintiff’s contention. In the cruise made by Cox he testified that he kept the dead timber separate from the other because he considered estimates upon that class of timber were extremely uncertain and that the only reliable test was cutting it out, but that he did not include any dead timber in his estimates which he did not consider merchantable. There was a considerable
“A. After seeing Mr. Cox, I went over and called up Mr. Jones and told Mr. Jones Mr. Cox had to come in for the reason that the snow shut him off and he could not cruise the timber; and that he advised me that I had better wait until spring to have the timber re-cruised.
“Q. What else took place at this time?
“A. And Mr. Jones said he could not wait until spring to have this timber cruised; that if we were to go ahead on this bond issue we had to go ahead now. I told Mr. Jones I did not want to go ahead under this proposition unless I had this timber cruised. He said, ‘Well, I think we have some cruisers in our office, and. I will go over those cruises,’ and he came back and said he had figured up, I think — of course, in a day or two, and said they had four hundred and forty-one million feet up in that timber. I said, ‘Well, I don’t want to go ahead and sign this contract just on account of you saying you have four hundred and forty-one million feet of timber on those cruises there; I want some kind of a guaranty,’ and Mr. Jones said, ‘Well, we will have to go ahead with the contract or not, one or the other, and I have gone all over this cruise and checked them up, and there is four hundred and forty-one million feet there,’ and I said, ‘Do you say there is four hundred and forty-one million feet?’ He says, ‘I guarantee there is four hundred and forty-one million feet of merchantable timber up there on our cruise,’ and consequently he put it into the contract and I signed it.”
Dodge knew that Jones and Kribs had no other means of knowledge than their cruises which had been' furnished him, and if Jones said, as claimed, “I guarantee there is four hundred and forty-one million feet of merchantable timber up there on our cruise,” it could
*463 ‘ ‘ On this tract there are fifty million feet of burned timber, and from trees examined in different parts of the burned area we found that the timber is still sound and in marketable condition, and the condition indicates that it will be sound and marketable for from six to eight years from the date of this exannination.”
This opinion, given a little more than three years before the date of the contract in suit and by a disinterested expert acting for a prospective buyer, is entitled to weight and tends to show that the dead timber was, in fact, a value when the contract was made. We have carefully gone over all the cruises in evidence which were made before the contract was entered into, and assuming that they are fair and honest cruises made for the purpose of ascertaining the actual quantity of merchantable timber on the land we are of the opinion that there was upon the land at the time the contract was entered into substantially the quantity of merchantable timber represented. The Cox cruises made for Dodge before the contract was entered into and which are entitled to credit are a shade higher upon an average than the Kribs cruises, and the cruises made after this suit was in contemplation were so hasty and superficial in character, and are so at variance with other cruises made by men apparently reliable, we are not inclined to accept them. A few instances will suffice to show the wide difference between the cruises made before and after this action commenced; SB. Sec. 11, Tp. 37 B. Lacey & Co., cruiser for Brewer & Co., the bankers who-were negotiating the prospective bond issue, reported 5,800,000 feet; Kribs’ cruise, 5,200,000 feet; Cox, Dodge’s cruiser, 6,820,000 feet; and McDonald, cruiser for plaintiff, 1,000,000 feet. Cn a tract in section 12, in the same township, Lacey estimated 13,654,000 feet; Kribs’ cruise, 12,250,000 feet, Cox, 19,699,000 feet; and McDonald, only 4,400,000 feet.
“The second parties further agree that so far as practicable they will first cut the burned timber on ’ Bock Creek in preference to the green timber, ’ ’ etc.
This indicates that the matter of dead timber had been considered by the parties and that its quantity was deemed of sufficient importance to make it the subject of affirmative mention in the contract, which would hardly have been likely had it consisted of mere inconsiderable patches resulting from camp-fires. We do not believe that the contract was induced by any fraud or false representations on the part of defendants, and these charges appear to be an afterthought when for reasons that have affected the whole logging interests of the northwest the bright prospects for the future of that industry proved to be illusory. At the time this contract was entered into there was a steady demand for lumber in the east, which for reasons not easily understood suddenly ceased. There were
“I always considered it a good asset. * *
“Q. I mean if the timber market was good it would have been a good asset, and if the timber market was*467 the way it is at the present time it would have heen a poor asset? • .
“A. Yes.”
The summing up of the learned circuit judge who tried this cause below upon the question of false representations is so cogent that we quote a portion of it:
“It is contended that this and other statements relating to the quantity of timber were expressions of opinion or estimates, and not statements of fact; that the amount of merchantable timber on this 8,000 acre tract, situated as it is, was not susceptible of accurate knowledge, and that the utmost one could do, was to estimate the timber by means of cruises. It is clear that this quantity was ascertained for the purpose of the contract by computing the cruises contained in the cruise-book, marked plaintiff’s exhibit DD. This is the same cruise-book that was delivered to Dodge before the contract was signed. It contains cruises by C. J. Clement, J. C. Murray, Charles Thom, Ben McMullen, A. J. Bennison, P. C. Garrison, C. W. Mead, and James D. Lacey & Co. All of these cruisers verified their cruises by affidavit, except C. W. Mead, whose affidavit could not then be procured, and Lacey & Co. It comprised cruises previously made and which were in the possession of Kribs. Jones says they were collected by Prank Garrison, a clerk in Kribs’ office, at his direction, but without any suggestion as to the selection of any particular cruises. Clement’s cruise was made about November, 1905; Murray’s, about July 26, 1909; Thom’s, about May 1, 1906; McMullen’s, about May 1, 1906; Bennison’s, about August 1, 1909; Garrison’s, about February, 1912, and Mead’s, in 1907. These are the cruises from which Jones computed the 441,000,000 feet on the Kribs tract. The cruise-book also included the cruises of J. P. Cox of the Dodge tract, section 36, and eight forties in section 31, duly verified under the cruise date of June 2, 1912. Now, was this body of timber capable of accurate ascertainment?*468 The land was broken and mountainous, and the evidence establishes beyond dispute that the only practical method of ascertaining the quantity of timber in a tract of this area and contour was by careful cruising by competent cruisers. I was impressed at the trial by the fact that accurate knowledge of the timber on this tract was impossible, and that owners and purchasers alike must depend upon the estimates of cruisers for their information. In cruising timber the human equation is always present, and the accuracy of the cruise depends upon the skill, the judgment, and the conscientious service of the cruiser. The extent to which the estimates of cruisers may vary is forcibly illustrated by the evidence in this suit. Under favorable and similar conditions, two cruisers of apparently equal ability will often vary greatly in their estimates. Representations should be considered in the light of existing conditions, and the physical facts should be kept in view, in construing this provision of the contract. And the situation and relative information of the parties should be considered. Both Jones and Dodge were familiar with timber cruising. Both had timber cruised before; it was part of their business. Dodge was the owner of timber adjacent to the Kribs tract which had been recently cruised. He had two other adjoining tracts cruised which he intended to buy. One of his business associates, and one of his employees, had taken a run through the Kribs tract. Two of his cruisers, Cox and P orden, had cruised over 6,000 acres of the Kribs 8,000 acre tract, and submitted a detailed report of their cruises, with a contour map which were available for inspection and comparison. He had the cruise-book in his possession upon which Jones’ statement of quantity was based. So with these means of information, with these opportunities for comparison, and with the past experience in the timber and logging business, he entered into the contract. When the parties contracted concerning this timber their knowledge of the inaccuracy of timber cruising, and the practical impossibility of accurate knowledge of*469 the quantity of standing timber were present, existing facts, which cannot be excluded from their negotiations. They both knew that their estimates might vary; that the timber could not be expected to cut out in exact accordance with the estimates; that it might overrun or might shrink in the cut or scale. Dodge knew that Jones could not give him a definite statement of the Kribs timber, and Jones knew that Dodge could not give him a definite statement of the timber on the Dodge tract, on section 36, or on section 31. A reasonable margin of variance must have been within the contemplation of both parties. This cruise-book DD contained cruises procured by Kribs on his tract, and cruises procured by Dodge on his tract, and on the tracts he intended to purchase. These cruises were estimates only, but they formed the only basis on which negotiations could proceed. Jones evidently accepted Dodge’s estimates, as shown by the cruise-book, on the three tracts in which Dodge was interested, and it is entirely reasonable to assume that Dodge accepted Jones’ estimates on the Kribs tract, as shown by the cruise-book. Now these same cruise estimates, on the Kribs tract, on the Dodge' tract, and on section 36, were taken and inserted in the contract. The Kribs tract was given as containing 441,609,000 feet, section 36 as containing 48,-886,000 feet, and the Dodge tract as containing approximately 93,400,000 feet. These figures by that time must have become familiar to all of the contracting parties. Dodge says the cruise-book was delivered to him a couple of days before the contract was signed! I am inclined to think that his memory is at fault there. The testimony of Jones refutes this, and the circumstances attending the negotiations, point, in my opinion, to an earlier delivery. It appears that Brewer, the bonding broker, brought the parties together. Both evidently intended originally to secure separate and independent bond issues upon their properties. There were preliminary negotiations and conferences between the parties. Jones collected the cruises on the Kribs tract, Dodge collected those on his tracts, and all were bound together in the*470 cruise-book. Jones secured several copies and took one east on December 14, to deliver to Brewer, and says that he gave Dodge a copy before his departure. On December 12, Dodge sent J. F. Cox and Ben Porden up to the Kribs tract to cruise the timber. This was an independent investigation to determine the quantity of timber on the Kribs tract before the contract was signed. Cox cruised 2,807.9 acres, and Porden cruised 3,440 acres, aggregating 6,247.9 of the Kribs 8,000 tract, before they abandoned the cruise on account of the snow. Their cruise reports and a contour map were delivered to Dodge’s office about January 10, which was about 16 days before the contract was signed. These cruises were available for comparison with the cruise-book. It is true Cox advised a reeruise for the reason, as he says, that the cruise of the entire tract was not completed, and because they might have overlooked some defects on account of the snow. But he says that the cruise should not vary more than 5 per cent on account of weather conditions. Cox also cruised 920 acres of the Kribs tract in the fall of 1913, under ideal weather conditions. Cox was Dodge’s cruiser, and the same man whose cruises of the Dodge tracts form a part of the cruise-book. If Cox’s cruises were sufficient estimates of the Dodge timber as a basis for this contract, why were not his cruises on the Kribs tract useful and serviceable to Dodge in these negotiations? There is nothing in this record to impeach his honesty, or to detract from his capacity. Weather conditions might have affected his winter cruise to some extent. It is rather significant that the Cox cruises are generally higher on the same land than the Kribs cruises used in the cruise-book. Neither the Cox cruise, nor the Porden cruise was produced by the plaintiff, although they were both traced to Dodge’s possession, and their absence was not explained to my satisfaction. The Cox cruise was available through original notes which Cox preserved, but the Porden cruise was not available, because Porden had lost or destroyed his original notes. But he identified the lands he had*471 cruised. Now with, the Cox and Porden cruises in Dodge’s possession about 16 or 17 days before the contract was signed, and with the Kribs cruises in his possession for at least a few days before it was signed, Dodge either compared the cruises and satisfied himself concerning the quantity of timber, or else he would appear to be lacking in reasonable prudence and diligence. I do not think they should have been ignored in this important transaction. Making due allowance for weather conditions, the cruise of more than three-fourths of the Kribs tract by Cox and Porden, should still have shown the run of timber on the tract. So I am persuaded from all the evidence, and the attending circumstances, that both parties contracted with the definite knowledge that the quantity of timber was not susceptible of accurate knowledge; that both parties knew that the quantities inserted in the contract were derived from a computation of cruises contained in the cruise-book; that neither had any source of information other than cruises; that their cruises were nothing more than estimates of cruisers, and that these statements of the quantity of timber were intended and understood by the contracting parties to express the estimates of the parties of the quantities of timber on the respective tracts; that, while the provision in question is positive in terms, it was based entirely upon estimates, and was only an estimate of that which was not susceptible of accurate knowledge, and was not intended, nor understood, to be a representation of a definite, ascertained quantity of timber.”
“I says (to Jones), ‘Well, I can see under this contract where I am going to get away.’ He says, ‘Well, what are you going to do about it?’ I says, ‘Well, I think I ought to have an interest in this proposition.’ He says, ‘What kind of an interest?’ I says, ‘Well, I think that I am entitled to some interest in the J. K. Dumber Company; I think I am entitled to a quarter interest for doing all this. ’ And Jones thought a while, didn’t say anything, and I says, ‘I think that is fair, that we should have that.’ He says, ‘Well, I will think the matter over and let you know.’ So we held the thing off a little while, held this contract off, and he said, ‘You fellows going to get busy with this thing?’ And I said, ‘I am waiting to hear from you. ’ So he came down and we went down to the Oregon Grill again. We sat down and had lunch, and he said, ‘Well, to satisfy you if you will sign this agreement we will give you a quarter interest in the J. K. Lumber Company.’ So I said — I think he said, I don’t know whether it was exáctly the J. K. Lumber Company or timber company to be formed, but I says, ‘I will sign that agreement and the contract that way.’ Then after we talked the proposition over I says, ‘You pay the bills and I will have a quarter interest in the J. K. Lumber Company, if I cannot finance this thing and handle it that way.’ ”
Dodge also testified that at the preliminary talk with Jones on this subject Mr. Allen, a business asso
“It is further agreed that when the second parties shall have repaid to the first party the amount advanced by the first party for the construction of logging railroads, mills, and equipment over and above the amount paid by the second parties for the timber conveyed by second parties to the first party, that such logging railroads, mills, and equipment shall thereupon belong to said parties of the second part, subject, however, to the faithful performance of all of the covenants and agreements herein made by the second parties and subject also to the lien of said trust deed insofar as it may cover such property.”
The forfeiture clause in the contract is as follows:
‘ ‘ The second parties agree that in the event of their failure to fully comply with all of the terms, conditions, and provisions of this agreement, the mill property of the Rainier Lumber & Shingle Company, now located at Rainier, Oregon, and the mill situated in section 35, township 3 north, range 7 east, Skamania County, Washington, and all of the railroad equipment, sawmill and logging equipment purchased for the logging of the lands covered by this agreement, either with funds of the first party or with funds of the second parties, shall forthwith become the property of the first party and may be used by said first party for the logging and manufacture of the logs and lumber of the timber referred to in this agreement or any other timber, and the second parties forthwith agree in the event of such default to transfer and convey all of such mill property by good and sufficient deeds of conveyance, and in the event of such default of the second parties, the first party*475 is hereby authorized to take possession of such mill property and equipment and use and employ the same, and said second parties agree not to interfere with such possession and use of said property of said first party.”
The land title itself being in the J. K. Lumber Company, the road built upon the land became a part of it, and a forfeiture of the land necessarily carried with it the roadbed, and it was only necessary to designate the equipment, which did not become part of the realty, to bring all the improvements under the forfeiture clause, and this was done. So that for a substantial breach of the conditions of the contract by the Dodge interests the J. K. Lumber Company, upon declaration of its intention to enforce the forfeiture, had a right to take possession of the property described thérein, except the mill property at Rainier, which for reasons hereinafter shown could not be the subject of forfeiture, not being embraced in the property conveyed under the contract.
“A forfeiture is a deprivation or destruction of a right in consequence of a nonperformance of some obligation or condition”: Webster v. Dwelling House Ins. Co., 53 Ohio St. 556 (42 N. E. 546, 53 Am. St. Rep. 658, 30 L. R. A. 719).
“The omission or neglect of a duty which a party binds himself to perform, or to the performance of which he is enjoined by law, is on a breach thereof called a forfeiture, that is, the advantages accruing from the performance of the thing are by his omission defeated and determined”: Beard v. Beard, 22 Ky. (6 T. B. Mon.) 430.
“Forfeiture is a divestiture of property without compensation in consequence of a default or offense”:*477 Union Glass Co. v. First National Bank, 10 Pa. Co. Ct. Rep. 565.
“Forfeiture relates to something done or omitted hy which one’s rights are lost. There can be no forfeiture of a contract that has no existence. Forfeiture assumes a pre-existing valid contract or obligation”: Roblee v. Masonic Life Assn., 38 Misc. Rep. 481 (77 N. Y. Supp. 1098).
It will thus be seen that while the words “penalty” and “forfeiture” are frequently used interchangeably, and while often the legal effect of their use is the same, that such a construction in an instrument relating to the loss or destruction of a right under a contract is impossible. The reason is apparent. In a case where a person agrees to perform a certain act or to pay a certain sum of money the court under certain circumstances may be able to say that the sum agreed to be paid is so disproportionate to the injury suffered it will hold the stipulation to be a mere penalty intended only to cover any actual damages that may ensue from a breach, that is, if the sum to be forfeited were fixed at $500 and the actual damages were only $100, the court under some circumstances, not all by any means, might award the promisee $100; but in a case where the thing to be forfeited is a property right dependent upon the payment of purchase price or the performance of some condition, the court cannot say to the promisee:
“The contract provides that the right to 160 acres of land shall be forfeited, but you are damaged only to the extent of 80 acres. Therefore, we will apportion that quantity to you instead of the 160 acres mentioned in the contract.”
The court must enforce the forfeiture as it finds it, or not at all. It has no leeway to substitute damages for the forfeiture mentioned in the contract. In
“(The defendants) offer and tender to the plaintiffs any damage which the plaintiffs may have sustained by reason of a livery business being carried on on said premises by the defendants A. J. Newman and J. W. Newman, in case the court adjudg’es that the said provision against carrying on said business on said premises is a lawful provision.” This court said: “We can only enforce the condition subsequent as we find it embodied in the deed. We find nothing in the pleadings or the testimony authorizing us to relieve the defendant, or to enlarge the estate which he knowingly and voluntarily purchased, encumbered as it was by the condition named.”
So here, if we find from the language of the agreement that the intent of. the parties was to prescribe a forfeiture as the result of noncompliance by the Dodge interests with the terms of the contract, it is our duty to ascertain the facts, and if our investigation discloses that there has been such failure to live up to its terms, we should, unless such failure has been occasioned by the inequitable conduct of the defendants, declare the legal results of such failure.
*479 “If I fail to do a certain act at a particular time, you may take to yourself the interest or right that T have in the property, the legal title of which is in you.”
A fails to do the act, and B takes possession of the property. Here is, in fact, no rescission of the contract by A, but merely the exercise of a contract right. The forfeiture takes the place of performance.
To discuss the evidence in detail would consume more space in the reports than would be practicable. It is sufficient to say that it fully supports every charge of default made in the notice of forfeiture, and that the exigencies of the case were such that the defendants were forced to the alternative of either taking the property and trying to save something out of it or of allowing the interest on the $900,000 bond issue to default, and the property to be sold at a probable or, at least, possible sacrifice. The defendants being indorsers on the bonds were in a precarious position. The Dodge institutions and himself were practically insolvent and could raise no more money. They had fallen down on the contract and were unable to proceed further, and it is apparent that their creditors never agreed to and never would have agreed to take up the Dodge contract where he left off and complete it in the depressed condition that the lumber market then was, and still is. It is true that the creditors discussed the matter, but arrived at no favorable result, and the testimony of Mr. Stennick shows that they could have arrived at none. If present lumber conditions continue, it is evident that there will be no profit in logging the lands described in the contract that will more than suffice to pay the bonds and interest if every foot of timber claimed by the defendants to be upon the land is actually there.
Other interesting questions have been discussed in the briefs, but we have chosen rather to decide this case upon its merits than upon the technical matters presented. We have read and re-read the evidence presented in the 3,000 pages of transcript and given much attention to the elaborate briefs of counsel, and upon the whole are satisfied that the decree of the Circuit Court should be affirmed. Affirmed.
Modified and affirmed on rehearing July 31, mandate recalled and corrected as to costs September 19, 1917.
Rehearing
On Rehearing.
(166 Pae. 951.)
Mr. Thomas Man-nix and Mr. E. E. Goovert, for appellant.
Messrs. Clark, Skulason & Clark, Mr. Guy C. H. Corliss and Mr. W. S. Nash, for respondents.
“It was claimed by the defendants upon the argument that a cause of suit to rescind a contract upon the ground of fraud rendering it void could not be joined with a cause of suit to set aside a forfeiture prescribed in the same contract by reason of a breach in its provisions, the first being, in effect, a denial of the existence of a valid contract, and the second an affirmation of its existence; and this seems to be the general rule. However, in the case at bar no demurrer for misjoinder was interposed; the only demurrer filed being general as to each cause of suit. Later a motion to compel the plaintiff to elect was withdrawn or overruled by consent. In this state of the case we will consider the second cause of suit upon its merits as disclosed by the testimony”: Stennick v. J. K. Lumber Co., ante, p. 473 (161 Pac. 97).
Upon a re-examination of the voluminous transcript we discover that a demurrer for misjoinder was filed and overruled on March 9,1915. We are of the opinion that the objection was well taken and that the bill was clearly multifarious. While the court below overruled the demurrer, the opinion rendered as well as the final decree make it evident that it proceeded upon the theory that this was a suit for a rescission of the contract
“Since the decision was rendered the plaintiff has presented a motion for a decision that will fully determine and adjust the equities in this suit. The motion and argument were addressed mainly to the forfeiture which was declared under the provisions of the contract. I concluded early in this litigation that this was not a suit to be relieved from a forfeiture, but that it was a suit to rescind the contract for fraud inducing its execution. In that view I could only consider those negotiations which were had before, or at the time of execution, since proceedings taken after execution could not have induced the contract. It appeared plain that a suit to rescind and a suit to be relieved from a forfeiture could not be maintained together, because they are inconsistent remedies; one in repudiation and the other in affirmance of the contract; that if both remedies were pursued together the bill would be multifarious and vulnerable to the demurrer. So this demurrer was overruled upon the assumption that one cause of suit was stated, and that a suit to rescind. These remedies being inconsistent, the adoption of the one was the exclusion of the other. The entire theory of the case as indicated by the pleadings, the evidence, and the arguments was the rescission of the contract for false representations of the quantity of timber. Fraud was the controlling issue, and the disposition of that issue was decisive of the ease. I did not regard the averments relating to the forfeiture as raising a distinct or vital issue, nor one having a direct bearing upon the issue of fraud, but merely ás disclosing the later contractual relations of the parties, and important only to advise the court of the existing situation in case a rescission was decreed.. But, aside from the question of con*483 sistency, I could not relieve against the forfeiture, because the conditions do not exist upon which that relief could be granted. There is neither a disposition nor apparent ability to perform the obligations of the contract if the forfeiture were removed. This remedy presupposes an intention and ability to perform, and is usually provided by an interlocutory decree, extending the time of performance and suspending the forfeiture during that period. I take it to be elementary that such relief cannot be granted at the suit of a party who declines to perform his part of the contract, and who disclaims in advance any intention to comply with its provisions. I am unable to follow counsel for plaintiff in his contention that the forfeiture should be removed, and the status quo restored, or its equivalent attained by a decree for money. This would involve not only relief against the forfeiture, but also a rescission of the contract on account of the forfeiture. I have given this cause diligent and conscientious service. Every contention of the plaintiff has been considered, and in this I have never been unmindful of the unfortunate situation in which the bankrupts have been placed. But I must decide this suit upon the law and the evidence. I am firmly convinced that fraud was not established, and this failing the present suit must fail. Any other available remedy the plaintiff may have will not be prejudiced by the decree. For the rest, the appellate court will correct any unconscious errors that I have made.”
There was a practical election on the part of counsel to try the case as one for the rescission of a contract upon the ground of fraud. At the beginning of the trial in answer to a remark of the court counsel for defendants replied:
“Certainly we are not proceeding on any theory of affirming this contract; we are proceeding upon the theory of disaffirming it, and we claim the right to introduce evidence—
*484 “The Court: The inquiry you desire to make in the question of warranty is in so far as that constitutes misrepresentation ?
“Counsel for Defendants: Absolutely.”
So it appears that the whole case was tried out upon the theory that if there were no fraudulent misrepresentation and no breach of the contract by the defendants, there was no right to recover in this suit. The subsidiary questions raised in plaintiff’s alleged second cause of suit, and again urged here, were properly considered as not involved in that issue as they were pleaded and could only be pleaded upon the theory that there was a valid and subsisting contract, whereas the suit for rescission was in disaffirmance of the original agreement upon the theory that it was invalid. . What is said, therefore, in the original opinion upon those matters relating peculiarly to the alleged second cause of suit may be regarded as dictum.
It is urged that certain property taken possession of by the defendants upon the forfeiture is shown by the evidence to belong to the Yule Logging Company and not to the Dodge interests; but for the reason above stated, as well as for the additional reason that that company is not a party to this suit and has been and is yet at liberty to litigate its own property rights with defendants, we are not authorized to consider that phase of the case.
As explained and modified herein we adhere to our original opinion, and the decree of the Circuit Court is affirmed as rendered.
Opinion Modified and Adhered to.
No Costs Allowed Either Party.
