[No. 7256.

Decided May 25, 1908.]

#### James O’Connor *et al., Respondents,*v. H. A. Burnham, *Appellant.**1*

Logs and Logging — Liens—Finished Product. Contractors getting out logs; at so much, per thousand feet, for immediate manufacture into lumber by the owner, are entitled to a lien upon the finished product, under Bal. Code, § 5931, giving a lien for services rendered in the manufacture of logs into lumber, and are not confined to a lien upon the logs given by Bal. Code, § 5930.

Same — Eloignment. Where the logs were at all times owned by one who manufactured them into lumber, the owner cannot defeat a lien on the logs by claiming that he was only liable as an eloigner, where the statute gave a lien on the finished product to any one rendering services on the logs.

Same — Performance of Contract. One claiming a lien on logs under a contract to cut certain timber at ?4 per thousand, payable monthly as delivered, is justified in ceasing to work upon the owner’s refusal to make payments agreed upon.

Appeal from a judgment of the superior court for Thurs-ton county, Linn, J., entered October 28, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose an employee’s lien.

Affirmed.

*Troy*& *Falknor,*for appellant,

cited: 25 Cyc. 1585 ; *Littlefield v*. *Morrill,*97 Me. 505, 54 Atl. 1109, 94 Am. St. 513; *Graham v. Gardner,*45 Wash. 648, 89 Pac. 171; *Dexter Horton & Co.*v. *Sparkman,*2 Wash. 165, 25 Pac. 1070; *Campbell v. Sterling Mfg. Co.,*11 Wash. 204, 39 Pac. 451; *Blumauer v. Clock,*24 Wash. 596, 64 Pac. 844, 85 Am. St. 966.

*Chas. D. King*and *Byron Millett,*for respondents.

1

Reported in 95 Pac. 1013.

Mount, J.

This action ivas brought to foreclose a lien upon certain lumber. At a trial the court found in favor of the plaintiffs, and entered a decree foreclosing the lien for *444the amount, $241.40, besides attorney’s fees and costs. The defendant H. A. Burnham has appealed.

The facts are in substance that, on October 19, 1906, the appellant was the owner of certain standing timber in Thurs-ton county, and operating a sawmill on the Des Chutes river near the standing timber. On that day the appellant employed the respondents to cut a certain portion of that timber into sawlogs and place the logs in the river. The employment was oral. The agreement was, that the respondents should furnish men and teams and place the logs in the river, at $4 per thousand feet board measure; that the appellant should pay for the work on the 15th of each month, for the logs delivered in the river during the previous month. The logs were floated down to the mill and immediately cut into lumber. Between the 19th day of October, 1906, and the 19th day of December of the same year, the respondents placed in the river 296,584 feet of logs, upon which the appellant paid the respondents $940, leaving the balance unpaid. About the 15th of December, some dispute arose as to the measurement of the logs and the amount claimed to be due, and appellant refused to pay for certain logs theretofore delivered into the river until certain timber could be cut. Respondents thereupon ceased to work and filed the lien notice which is now being foreclosed.

It is claimed by the appellant that the respondents are contractors and are, therefore, not entitled to claim of lien under Bal. Code, § 5931 (P. C. § 6083), upon lumber manufactured from the logs; that respondents were entitled to claim a lien only upon the logs, under Bal. Code, § 5930 (P. C. § 6082). This question was directly passed upon in *Robins v. Paulson,*30 Wash. 459, 70 Pac. 1113, where we held that persons cutting the iogs in the woods for the manufacture of lumber were entitled to a lien upon the finished product at the mill. In the case of *Graham v. Gardner,*45 Wash. 648, 89 Pac. 171, we held that persons employed in the woods cutting logs at a fixed price per thousand were not *445entitled to a lien upon the mill where the logs were manufactured into lumber. Some things were said in that case which may be at variance with the holdings in *Robins v. Paulson, supra,*and cases therein cited, but it was not our intention to overrule those cases.

Appellant also argues that he must be held as an eloigner, if he may be held at all; but what we have said above disposes of this contention. There is no element of eloignment in this case. The respondents cut and delivered the logs to the appellant, who mrnufactured them into lumber at the mill. The logs were the property of the appellant at all times. The appellant simply hired the respondents to go into the timber and cut and deliver the logs to the mill, there to be manufactured into lumber immediately.

It is next claimed that the respondents did not perform the contract by keeping appellant supplied with logs sufficient to keep the mill going, and that appellant was damaged thereby. The evidence is in direct conflict as to whether the respondents agreed to cut sufficient logs to keep the mill running; and we are of the opinion that the evidence is insufficient upon this point to base a finding of damages upon. The evidence shows that the capacity of the mill was much greater than the ability of respondents to supply logs. No complaint was made that logs were not supplied fast enough until about the time respondent ceased to work. We are also of the opinion that the respondents were justified in ceasing to work, by reason of the refusal of appellant to make the payments as agreed upon.

We find no error in the record, and the judgment must therefore be affirmed.

Hadley, C. J., Root, Crow, Rudkin, Fullerton, and Dunbar, JJ., concur.