, 1892-03-19
M0RTGAGED LOGS.
THE SUPREME COURT REYERsEs
LEWIS COUNTY CASE.
The Liability OF the AppeIiant-A
Question Upon the Conditions
OF Contract Action Dis
missed.
CONCLUDED from Friday. I

OF "a COntract-The Action Dis
missed.
TConcluded from Friday
Plaintiff replied to Longs answer, ad-
mitting pretended foreclosure sale of his
logs, but denying that any lawful proceed
ing had been taken for that purpose. Other
matters in the reply were wholly inmate
rial, and not responsive to any new matter
raised by the answer.
In this state of the pleadings the cause
was tried Plaintiff introduced no testi-
mony, under an intimation from the court
that his case was admitted by the plead
ings. Thereupon Russell & Son moved to
dismiss as to them, which motion was de-
MED. Defendant thereupon sought to
show that no logs but those admitted by
the answer of Russell & Son were deliv-
Long under his foreclosure were not
merchantable logs, but we're Watter-soaked
and rotten, SO that they were worth but
little, of which Runyan had notice; that
for the reason that the logs were of such
inferior quality they notified him that
these logs could not be received under the
contract; and that, therefore, Long sold
them to save his debt, all of which
was refused by the court. But at
this point a fact appeared which was not
limited at in the proceedings on either side,
VIZ: that the defendants, Russell & Son,
WGGG tllG puICudSSIS dO LOllS lOI0ClOSuI6
sale. 1t simply seemed to be assumed by
court and counsel to be true without any
testimony on the subject. The defendants
offered to show other facts, few of which
were relevant to the case under the
pleadings, but some of which may
have been pertinent to 1t as tried; but
all of them were ruled out. And the
court thereupon rendered Judgment
for plaintiff upon the pleadings, to do
which it made the following conclusive pre-
sumptions against the defendants: 1. That
362, ,258 feet of logs were sold by Long. 2.
That part of them exactly proportioned
to the number of four dollar logs delivered
by Runyan were ofthat class. 3. That an
other part exactly proportioned to the
number of three dollar logs delivered were
of that class.
Viewing this case from the standpoint of
equity, where the respondent himself
placed it we should say that none of these
in. Under the contract he was to get a GER
tain sum per thousand feet of good mer-
charitable logs, as they should turn out to
be, smooth or rough, and out of this price
the expenses of delivery and Longs debt
were to be first paid. Russell & Son alone
were responsible for the price, and then
only when Runyan should have delivered
them, and they were merchantable, and
had been sawed up and sold. Long, at the
most. could only be held to keep hands off
until April 1st, 1891, or to pay such dam
ages as he might occasion by selling under
his mortgage at an earlier date. No action
for an accounting could lie against him un-
der any circumstances, and any damages
court might give for his premature sale
would be limited to the actual injury suf-
fered not by the plaintiffs loss of rotten or
worthless logs, but by his loss of such logs
as Russell & Son were to convert into lun-
Der. There was nothing either in
his GhnttPl 0lOTtOApa his
assent to the contract which
bound him to certain num-
Der of feet or to value of the logs; and
especially there was no basis whatever for
presuming against him that because about
sixty per cent. of the logs admitted by
Russell & Son to have been saved, were Of
the first class and forty per cent. of the
second class, therefore the remaining nine
tenths of the lot were of the two classes in
precisely the same proportions.
AS to the liability OF Russell & Son, as
suning them to have been agents as
claimed, and therefore, subject to account,
there is no ground in the case presented,
for a judgment against them. Respond
ent made no reply to the accounting they
furnished in their answer, and their allega-
tion that they had received no logs other
than those therein accounted for. But if we
admit it to be in the case that they were the
purchasers at Longs sale, it would be diff
tcult to lind reason why they might not
be the successful bidder as well as another
Unless Long assented to the contract they
were not to be bound by it, and if, disre-
garding his assent, he sold, what principle
could make them responsible? Possibly
if some fraudulent collusion were made to
appear between them and Long, whereby
the sale was brought about, or if the sale
were void and not merely irregular court
of equity would consider the logs coming
into their hands as those under the con-
tract and not by the purchase. But in that
contingency it must som ewhere appear
that the conditions of the contract have
transpired, viz, that the logs were mer-
chantable, that they have been sawed and
that the lumber has been marketed, or that
Russell & Son have not acted with
reasonable diligence. 1t is true that
in his reply to Longs answer the
plaintiff says that the logs have been re-
dueed to lumber, but he does not say that
they have been SO reduced when the action
was commenced, or that any of the lumber
had been sold; besides which plaintiff
cannot be allowed to make his case by his
reply, and this allegation was not made as
against Russell & Son at all.
The judgment will be reversed and the
action dismissed as to both defendants.
We concur: Anders, G. j.; Dunbar, j.;
Hoyt, J. Scott, j., did not sit at the hear
ing of the cause.