People's Planing Mill Co. v. First Nat. Bank

*217 GARDNER, J. This suit grows out of a written contract entered into between the plaintiff, the People’s Planing Mill Company (hereinafter referred to as the mill company), the defendant, the First National Bank of Evergreen (hereinafter designated as the bank), and two individuals, R. C. Ellis and Mark Booker. • Counts 1 and 2 were withdrawn by the plaintiff. There were filed numerous other counts, some seeking recovery for money had and received under what are termed special counts setting up the contract, and the facts upon which plaintiff relies for recovery, and other counts for breach of the contract set out. Demurrers were sustained to all of these counts, and plaintiff took a nonsuit to review the rulings of the court thereon. Epperson v. First National Bk., 209 Ala. 12, 95 So. 343. The primary purpose of the appeal is to obtain a construction of the contract, and a consideration of count 3 as amended, which seeks recovery for money had and received, will suffice for this purpose. Under the contract, set out in full in this count, it appears that Ellis sold to Booker certain timbered' land, taking a mortgage thereon as security for the purchase price. Booker was also indebted to the bank. All parties were desirous that the timber be manufactured into lumber, and it was contemplated that such lumber be dressed by the plaintiff, mill company. It further appears from the contract that the parties contemplated advances to be made by the mill company to Booker'as he proceeded with the cutting and manufacturing of the timber into lumber. The bank was selected as the financial agency of the parties, and, evidently to further facilitate the (marketing of the lumber, it was agreed that the title to all the.lumber manufactured from such timber should vest in the bank immediately upon its being cut, and that the bank should sell the lumber and collect the proceeds. It was contemplated that Booker would deliver the timber as cut to the mill company to be dressed, and that the mill company would load the dressed lumber on cars, furnishing to the bank, along with the bills of lading, invoices or memoranda, showing the kind and grades of lumber loaded onto each car and the amount thereof, and that out of the proceeds of the sale of said lumber the bank was to pay Ellis $4 out of each 1,000 feet sold, to be credited on Booker’s purchase-money mortgage, and $12 out of each 1,000 feet sold to the mill company, out of which the mill company was to pay its charge for dressing the lumber and so much thereof as necessary to repay it the sums advanced Booker, and the balance to be retained by the bank as a credit on Booker’s indebtedness. The contract very clearly discloses the intention of the'parties that out of the proceeds of the lumber the bank was to retain for Booker’s indebtedness to it the sum remaining only after the payment of the $16 per 1,000 feet, as stated above. The parties had in mind, however, that Booker might fail to carry out his part of the agreement as to delivering the lumber to the mill company, and near the dose of the contract is the following clause providing for such contingency: “It is further agreed that should the said Marie Booker fail to proceed with the cutting and manufacturing of the said timber into lumber, or should he fail to deliver the said lumber as manufactured to the said People’s Planing Mill Company, the said First National Bank of Evergreen shall be authorized to take charge of all of said lumber so manufactured and sell the same as it shall deem best and after paying the amount due the said R. C. Ellis on stumpage and the charges of the People’s Planing Mill Company, to apply all the balance received for such lumber to the account of the said Mark Booker.” The count here considered shows that from timber Booker cut and manufactured into lumber 500,000 feet, but only a small portion thereof (80,000 feet) was delivered by him to the mill company to be dressed, which amount was dressed by the mill company, loaded on the car with the memoranda or invoices thereof furnished to the bank; that the remaining 420,000 feet Booker delivered to another party, to be dressed, without the consent of plaintiff, mill company, but with the knowledge and consent of defendant bank; that, after entering into the contract, and during the time Booker was eutting'and manufacturing the timber, plaintiff, relying upon said contract, made advances to Booker, a large portion of which remains unpaid; that all the lumber referred to was sold by defendant or under its direction, and all proceeds thereof were received by defendant, but defendant refuses to pay the charges due plaintiff under the contract. It is also averred that plaintiff at all times has been ready, able, and willing to dress said lumber. It is insisted by defendant that, in fact, a recovery of advances to Booker is here sought, and that defendant under the contract was under no obligation therefor. True, defendant did not so obligate, but by the contract defendant became the financial agent of the parties, and occupied, in a sense, a trust relation to this plaintiff as well as the other parties. The funds in its hands were to be dispersed in accordance with the terms *218 of the contract. It was contemplated that advances should be made by plaintiff to Booker, and that these advances should be repaid to plaintiff out of the proceeds of said lumber as a part of the $12 out of the sale price of each 1,000 feet sold by the defendant. In the clause of the contract hereinabove set out a payment of the charges of plaintiff, mill company, is provided for. Should Booker fail to deliver the lumber to plaintiff, as provided in this clause, then there would be no charge for dressing the lumbfer, and charges therein provided to be paid plaintiff were the charges for advances as were contemplated by all parties were to be made Booker by plaintiff. But we construe the contract to the effect that plaintiff’s right is subordinate to that of Ellis for- stumpage. The payment to Ellis of $4 for each 1,000 feet of lumber sold was to be credited on the purchase price therefor. As security, Ellis held a mortgage, and there existed aiso the statutory lien. In the contract the payment of this stumpage to Ellis was given first consideration, and we are of the opinion all parties contemplated that Ellis was to be first paid out of the proceeds of the lumber; that is, had a priority of right as against plaintiff or the bank. We do not intend by what we have here said that Ellis wasi to be paid first for all stump-age, but that as to the $4 oiit of each 1,000 feet he had priority of right of payment. If it should so happen (by way of illustration)' that the lumber sold for a sum not in excess of $4 per 1,000 feet, Ellis’ right to payment would be superior, and there would be no funds for further distribution to plaintiff. The counts fail to disclose the price for which the lumber was sold, or that the proceeds were in excess of the sum due Ellis for stumpage, under the contract as here construed. Failing in this, the counts do not show a right of plaintiff to recover. There are assignments of demurrer taking this point, and these assignments justify the action of the trial court. Without specific treatment of each count, we may add that this defect is inherent in the entire complaint, though some of the counts, as for breach of contract, may be also defective in failing to aver that the defendant sold the lumber and received the proceeds thereof, for defendant was authorized, but not obligated, to take charge of the lumber and sell the same, but, having assumed charge as so authorized, we are of the opinion defendant held the proceeds thereof for distribution in accordance with the terms of the contract. As we have previously stated, however, this distribution contemplated that Ellis be first paid $4 out of each 1,000 feet, and the complaint, failing to disclose that the proceeds were in excess of such sum, is defective, and subject to the assignment of demurrer taking the point. One or two other matters which received much attention in brief may'be adverted to. The count charges that the lumber was delivered to another, to be dressed without plaintiff’s consent, but with the knowledge and consent of defendant. Plaintiff had a right, as we construe this contract, to look to the funds in defendant’s hands for reimbursement of the advances made to Booker, and that another dressed the lumber under the circumstances herein averred does not affect this right. It is objected that the plaintiff fails to aver it has performed all the terms of the contract, such as loading the lumber on the cars, invoices and bills of lading furnished defendant, citing Long v. Addix, 184 Ala. 236, 63 So. 982, to the effect that, where one relies upon a breach of a contract, he must show that he has fully complied therewith, or that he was ready, able, and willing to do so, but prevented by defendant’s breach. But this argument is inapplicable to the averment of this count showing that the lumber was never delivered to plaintiff. The provisions for invoice, bills of lading, and memoranda presuppose a delivery of the lumber to plaintiff, and were to facilitate the sale and proper accounting thereof. The delivery of the lumber to another with defendant’s knowledge and consent has rendered these matters beyond plaintiff’s control. Long v. Addix, supra. As to the small portion of the lumber delivered to plaintiff, we do not think it objectionable that it fails to show plaintiff furnished defendant a bill of lading therefor. It does show that plaintiff dressed the lumber, loaded it on cars, and furnished defendant memoranda or invoice thereof, and that, the lumber was sold by defendant, and proceeds of the sale received by it. The bill of lading was only to facilitate the sale, which, being accomplished, and the proceeds in defendant’s hands, sufficiently discloses a waiver of such requirement. Long v. Addix, supra. It results that the demurrer to the complaint was properly sustained,-and the judgment will accordingly be here affirmed. Affirmed. ANDERSON, O. X, and SAYRE and MILLER, JJ., concur.