Wannebo v. Stone

Kuhn, J.

(after stating the facts). In reading the contract, there is some difficulty in determining what rights Mayhew was to have in selling the lumber. By its terms, Mayhew bound himself to assist Wannebo “in finding a purchaser or purchasers at the highest and best prices for which the same can be sold;” and the contract further provides, “but no sale shall be made, except with the consent and approval of said Wannebo.” This latter clause is clearly subject to the construction that some other person than Wannebo could arrange for the sale, but that it should not be final and binding, without his consent and approval. It is the claim of Mayhew that he had the right under the contract to arrange for the sale; that by the terms of the contract he also had the right to have his lien discharged by the payment to himself of the first money received from the sale of the lumber. And it appears that under the most favorable construction of the testimony in the case for the plaintiff his (May-hew’s) lien would still exceed in value the amounts received by him from the sale of the lumber. It also appears that Wannebo does not object to the price at which the lumber was sold by Mayhew, but in his testimony places the value at $19 per thousand, the amount paid by Stone.

The learned trial judge was of the opinion that the letter of December 1st was a confirmation of the sale by Mayhew, and that therefore there was no conversion, and the action of trover must fail. With this we are inclined to agree. A careful reading of this letter shows that it does not repudiate the sale. It does not say that Mayhew had no right to sell the lumber, but simply that he has no title thereto, and “all his right to it is simply a lien,” and that therefore the full value of the lumber must be accounted for and paid to Wannebo, and not to Mayhew. As we believe that under the terms of the contract Mayhew had a right to arrange a sale, and as by the letter of December 1st Wannebo, in effect, gave his consent thereto, it cannot be said that there was a conversion of the property in question.

' The circuit judge reached a proper conclusion, and the judgment is affirmed.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird Moore, and Steere, JJ., concurred.