, 1892-03-18

M0RTGAGED LOGS.
THE SUPREME COURT REYERsEs
A LEWIS COUNTY CASE.

The Liability of the AppeIIant-A
Question Upon the Conditions
Of a Contract -The Action DIs-
missed.
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print from time to time all the decisions of
the supreme court.
g. b. Runyan, respondent, VS. e. Russell
ct al, appellants. Appealed from Lewis
county.
No. lis, filed Feb. 8, 1892.
That the bond of the appellants, Russell
q Co., was filed before the notice Of appeal
was given, is not, in our Judgment good
ground for dismissal Our statute fully
protects the respondent in case the bond is
defective, or the sureties insufficient, and
thatls all he can reasonably demand. The
motion to dismiss is therefore denied.
The plaintiff below, on the 7th day of
February, 1890, assuming to be the owner
of about four hundred thousand feet of
good merchantable logs, part of which lay
in the Chehalis river. and the remainder
in the east branch of that river, and all of
which he had heretofore mortgaged to de-
fendant Long to secure the payment of
S337.65, then past due, executed to defen-
dants Russell contract to sell and deliver
the logs to them at their boom in or near
Chehalis, en- or before April l, 1891.
Russell q Son, on their part, undertook
with all reasonable and convenient dis
patch, to saw the logs into lumber, and sell
the lumber in the market. and out of the
proceeds, as fast as realized, to pay Run
yam four dollars per thousand feet for
smooth logs and three dollars for rough
ones, according to the "Spaulding rule
and the measurement of scaler to be em-
ployed bv Runyan. The first money re-
ceiyed by Russell and Son for lumber was
to be devoted bv them to the payment#of
the drivers to be EMPLOYED by R1nvan in
delivering the logs. and the second money
was to be paid to Long until S337. .65 with
interest at one per cent ner month from
June /. 1889. had been so paid to him both
of these items were to be charged as cash
paid to Runyan on account. of the purchase
money of the logs.
There were clauses in the contract in
this language: s'It is expressly understood
and agreed that no prODerty interest or
right III the said logs or lunb ber specified
IN this contract otherwise than as holders
Of an agreement to purchase as herein set
forth is to pass to the parties Of the second
part (Russell g. Son) until the same has
been paidsfef as provided for in this con
tract And "this agreement is not to be
of any binding force or effect as to the
parties of the second mart I1ntiI assentad
to in writing by the said j. s. long"
\ Long, in Consideration Of one dollar paid
by Russell e. Son. assented to the agree
meQt made between them and RuQVaQ.
and agreed to hold them responsible to
him only as set forth therein, but limited
his assent in these words: stBut this as
sent is not to interfere with these or any
rights between the party of the first part
ann said ii & Iongn
On the 26th day Of February 1891 RIM
van filed his complaint againstthe Russells
and Long. alleging The partnership Of the
Russells, his own Indebtedness to Long.
his ownership of the logs and their value.
and his construction of the legal effect of
his contract with the Russells. viz: That
they were his agents to 'nanufactIlre fine
logs into lumber, market the lumber. and
distribute the proceeds. tbey retaining the
balance, after paving the expenses. LONGS
debt. and the agreed nrice Of the logs as
their compensation for saving and market
ing. The contract was NOT SET ont nor was
there anv allegation Showing a delivery Of
the logs by him. or any other seomplianceE
with the contract as fl existed. Or that fine
LOGS had been sawed or .any moI,ev re-
allied from sale az lufnher. tn these mat
ters it fell short Of BEING a sufficient com
plant against any Of the defendants. and
especially Long. But the fifth naragranh
was relied upon to COMPLETE the
statement of cause of ASTON.
We quote. t5. Thot the said
Russell a Son. and the said / 8 Lone
contriying to defraud plaintiff have neg
lected ana refused. ana Still do neglect and
refuse to account to plaintiff for any por-
tion Of said logsa or lumber or the proceeds
thereof. but the defendants have wrong
fully converted the same to their ovn. .use
The PRAYER was that the defendants ac-
count and that the plaintiff have general