Prentiss v. Garland

Peters, J.

The plaintiff’s, owners of an interest in a tract of land, permitted in writing to one Perry, the right to cut and remove lumber therefrom, upon the express condition that the title to all lumber taken should be and remain in the permitters until the stnmpage should be paid. Perry assigned the permit to the defendants, the assignment having the effect of a transfer of logs afterwards cut, by an indorsement in form absolute and unconditional, but intend ed by the parties thereto as security for supplies for the intended operation. Perry entered and cut upon the land in the winter of 1872-3, and the logs came down the river during the driving season following.

In Inly, 1873, a portion of the logs came through the boom, where they were sorted out from the logs of other owners, and the defendants took them and sold them on their own account to Walker & Co., receiving payment therefor, in utter disregard of the rights of the plaintiffs. That act made the defendants liable to the -JKtiffs in trespass for the logs so sold. This action is brought to recover from the defendants the money received therefor. The plaintiffs must recover, unless the action is defeated by some one of the transactions that took place afterwards.

In October, 1873, the balance of the logs were through the boom. Perry sold them to Walker & Co., with the consent of the defendants, giving the plaintiffs notes signed by Walker & Co., payable to the order of the plaintiffs, for stumpage on all the logs cut during the winter’s operation, and taking from the plaintiffs their written receipt that the notes should be regarded as a discharge of the stumpage lien on the logs whenever (and not until) the notes were paid.

The defendants contend that the legal effect of plaintiffs’ taking the Walker & Go. notes was a payment of the stumpage and not a pledge or security for it, because the notes were made payable to the order of the plaintiffs, without the name of the defendants or of Perry thereon. The answer is, that the notes were only-taken as a conditional payment, the jury finding the fact to be so. The notes were received to be a discharge of the lien on the logs, when paid. If the notes had been paid the stumpage would have been paid. Whenever the notes are paid the lien is gone. Should the stumpage be collected by this suit or in any other way, the notes would belong to Perry or the defendants, and can be returned to them as any other kind of property could be which had been held for collateral purposes. We see nothing in the transaction of an unusual character. Suppose Walker & Go. at Perry’s request had deeded a house or given a bill of sale of a ship to the plaint iffs, instead of giving the notes, upon an agreement of the plaintiffs to Perry, that the house or ship should be held as security for the claim of stumpage ; there could be no pretense that, because the title of the property was in the plaintiffs, they were obliged to keep it for the claim. They could deed it back without covenants, and so can they without recourse indorse the notes to Perry or his assignees if necessary. The counsel for the defendants put much stress upon the circumstance-that the notes were not received by the plaintiffs directly from Perry, and the drift of the argument upon this point is, that their taking the notes was a transaction with Walker & Co., and not with Perry or the defendants. We think it requires a distortion of the facts to obtain such a construction. It is true that the notes wore not literally received from the hands of Perry, but they were taken from Walker & Co., in the presence of Perry and on Perry’s account. There was no dealing between the plaintiffs and Walker & Co. The case does not dis" close that a writing or a word passed between them. Perry sold the logs to Walker & Co. He so swears. TIis bill of sale, dated October 11, 1873, show's that he did. The defendants directed Perry to sell to Walker. Perry says, “he (defendant Cassidy) told me I might close the trade with Walker.” Cassidy himself testified: “I said then to Perry to go and close his logs with Walker.” Again, Cassidy says, “I told him (Prentiss) he could have our paper or Mr. Walker would buy Perry’s logs, and Perry would give him Mr. Walker’s paper.” And Perry further says, “I told him (Prentiss) Iliad an offer for my logs from Mr. Walker and asked him if he would take Mr. Walker’s paper for the stump-age.” When Prentiss took the notes, Perry signed the bill of sale to Walker & Co., and received from Prentiss the conditional receipt, and also took away the notes of Walker & Co. given for the proceeds of sale exceeding the amount due for stumpage. Although Perry does not own that1 he got a receipt, the defendants’ counsel admitted as a part of the case at the trial that a receipt was given. The notes were not given by Walker & Co. in purchase or payment of stumpage, as between themselves and the plaintiffs. They bought nothing of the plaintiffs nor undertook to. The notes were given as part payment of the logs purchased of Perry. In form they were given to the plaintiffs, but in substance and fact were payments to Perry. In the bill of sale, Perry receipts for these notes (to the plaintiffs) as payments toward tbe logs by liim sold.

Then the defen dauts claim that the lien on the logs was lost, upon another aspect of the evidence. They contend that, as all the logs of the operation were sold to Walker & Co., by different sales, the plaintiffs approved and ratified such sales by accepting, for tbe stumpage, notes which were the proceeds of one portion of' tbe sales, and 'that such approval and ratification are inconsistent with the continuance of a lien upon any of the logs. It may or may not be, that a land owner will discharge his lien upon logs by permitting a sale thereof and taking for his stum page some of the notes given for the logs sold, although he only gives a conditional receipt therefor, such as was given in this case. But that is not the case here. The plaintiffs have received none of the fruits of the sale in July, for which this suit is instituted. It must be borne in mind that the sale by the defendants in J uly, and the sale in October by Perry, with the consent of the defendants, are two entirely distinct and independent transactions. There is no more connection between the different sales than there would have been if the July sale had been made, not to Walker & Co., but to John Doe & Co., or any body else. The notes taken in October do not in any way represent the July sale or have anything to do with it. The plaintiffs have in no way assented to that sale. The most that can be urged in that regard, is, that they have agreed that they will assent thereto when the notes given them for stump-age shall be .paid and not before.

Walker & Co. failed before the notes matured and the notes are still unpaid. They desired to compromise their liability thereon for twenty-five cents on the dollar. The plaintiffs were willing to so settle the notes with them, provided the notes were absolutely the property of the plaintiffs, as was contended by Perry and the defendants; otherwise, not. Accordingly the plaintiffs gave to Walker & Co. an agreement'to compound the notes with them on that basis, provided they could not recover of the defendants the stumpage for the payment of which the notes had been conditionally taken. The defendants claim that this was on the part of the plaintiffs a conversion or absorption of the notes equivalent to 'collecting them. We do not accede to this view. What has been said on a previous point applies here. An agreement to settle upon condition is not itself a settlement. A conditional agreement to compromise is not per se a compromise. The defendants claim that the point urged by them is strengthened by the fact that the notes were indorsed by the plaintiffs and placed conditionally in the hands of Bowler & Merrill. But the indorsement was not made to pass any present title, but only that the title might at some after time be passed, if there was occasion for it. Bowler & Merrill were the agents of the plaintiffs as well as of Walker & Co., by becoming the depositary of the papers for the parties.

Finally, the defendants say that, as between Walker & Co. and the plaintiffs, the conditional agreement to settle the notes became an absolute and perfected one on account of the delay in commencing this action against the defendants. This objection can avail nothing. No time is prescribed within which the controversy was to be commenced. No perceivable injury has been caused to anybody by the delay.

We do not feel willing to set the verdict aside as being manifestly against the facts of the case. The rule of law given upon the main point of fact submitted to the jury was acceptable to the defendants. The verdict finds that there were no facts upon which an estoppel as claimed could be founded.

Exceptions and motion overruled.

Appleton, C. J., Walton, Dickerson, Barrows, and Yirgin, JJ., concurred. •