Shepich v. Kent Lumber Co. , 19 Wash. 296 ( 1898 )

The opinion of the court was delivered hy

Reavis, J.

Steglich entered into an agreement with Lysander and A. E. Smith on the ninth of December, 1892, which substantially states that Steglich, in consideration of payments hereinafter mentioned, to be paid by the Smiths, did grant, sell, convey and confirm unto said Smiths all the merchantable timber, down and standing, on certain described premises, and it is understood and agreed that the Smiths have the right and privilege of constructing and using skid roads, train roads and railroads on and across the premises as they may deem necessary, for a period of three years to remove the timber on the premises and timber on lands adjoining, and the Smiths agreed to pay, as full compensation for the timber and privileges, lumber of the value of $200 to be delivered according to the order of Steglich, and $500 to be paid in cash in five installments, the last of which was on March 4, 1894. "When the contract was executed the Smiths were in partnership, doing business under the name of the Kent Mill Company. In June, 1894, a corporation was formed called the Kent Lumber, Company, the incorporators of which were Lysander and A. E. Smith. On the 13th of June, 1894, the Smiths sold, assigned, transferred and set over to the defendant, the Kent Lumber Company, all their right, title and interest in and to the said agreement. At the time the contract was assigned to respondent, Kent Lumber Company, the Smiths had only paid about one-third of the purchase price of the timber. Steglich was adjudged insane in December, 1894, and appellant appointed as his guardian. The Smiths had cut and removed only a portion of the timber when the assignment was made. After his appointment as guardian of Steglich, appellant sought to enjoin respondent from cutting and removing timber, but was denied a permanent injunction, respondent claiming the right to take timber by virtue of the contract. In this action appellant sought to recover judgment against respondent and defendants Smith for the balance of the purchase price under the contract for the timber. After appellant’s testimony was in, the superior court granted a motion for non-suit in favor of the respondent. Appellant then dismissed his action against the Smiths without prejudice and appealed from the judgment of nonsuit in favor of the respondent. Without a specific promise to pay Steglich, or appellant, for the timber, it is difficult to see, under the terms of the agreement, how respondent can become bound for the purchase price. Eor a valuable consideration it purchased the contract and in the absence of fraud the presumption is that it became obligated to, or paid, the Smiths for the timber. In the agreement there does not seem to be any reservation of lien upon the timber for the purchase price. The timber was sold to the Smiths. They and respondent cut and removed it immediately. Title passed at any rate as soon as it was severed from the land. The fact that the Smiths were given time to pay the purchase price instead of making a cash payment does not change the nature of the agreement.

The judgment of the superior court is affirmed.

Scott, O. J., and Anuses, Dunbab and Gordon, JJ.,, concur.