Hurd v. . Cook

Hand, J. Applying to the present case the test of the court below, as stated in its opinion in Sackrider v. Cook, as to the transfer of the title, and their order would still be wrong. It was error to reverse the judgment upon the report of the referee here, even assuming, as was done in the other action, that title passed to Sackrider & Wait only in the merchantable lumber, and not in that, until after it was sawed and culled. The property claimed by the plaintiff was lumber, and lumber only ; it was merchantable lumber, as appears clearly enough from the evidence, and the fact, even although not specifically .found, should have been, if necessary, used to support the referee’s decision. But we are of the opinion that the construction given by the court below to the contract between Wainwright and Sack-rider & Wait was erroneous, and that by that contract title to all the logs, even before their manufacture, was vested in the latter, at the latest, as soon as they were delivered on the log-ways or millyards. The contract is inartificially drawn, and not in all respects perfectly intelligible ; but the one thing in it, which seems to us to have been clearly intended and to have been made *458 most distinct of all, is that Sackrider & Wait are to have the absolute title to all the logs, as soon as they are delivered. The contract is as specific upon this point as upon anything. It says expressly : “ All the logs, etc., * # * the said Wait & Sackrider are to have the title to and belong to them absolutely,” and in consideration of this, they agree to make certain advances to Wainwright upon the lumber as soon as sawed. .There certainly is no rule of law to prevent this transfer of title taking eii'ect according to the stipulation of the parties ; and there is nothing, in my judgment, in any other part of the contract, in the least, inconsistent with such result. Wainwright is to have the bark on the logs already cut, if he peels it; otherwise Wait & Sackrider arc to have the right to peel it, and they are to have the bark peeled from the logs cut by them. This may indicate that the bark was regarded as something separate and distinct from the logs, and not necessarily passing with them, and is not at all repugnant to the vesting of the title to the logs on delivery. The stipulation that Sackrider & Wait are to retain the amount duo them for stocking the mill and drawing the lumber to the river, and all their advances, out of the sales by them so far from being inconsistent with title to the logs in them. > tends to show that they, and they alone, have the right to sell their product, and hence inferenfcially had the title thereto The contract seems to have contemplated that Sackrider & Wait should cut and draw to Wainwright’s mill the logs, for which service they were to have $2.50 per thousand for those cut and drawn, and $2.25 for those only drawn; the logs were then to be sawn by Wainwright, under the direction of Sackrider & Wait, and they were then to advance to Wainwright two dollars per thousand on the merchantable lumber. Sackrider & Wait were to receive in addition $1.50 per thousand for drawing the merchantable lumber to the railroad or river. They were to sell the lumber, and retaining their price for cutting and hauling logs, their advances, and anything due for hauling, were to pay to Wainwright the *459 balance. In connection with such an operation, it was proper that the parties should determine in whom should be the title to the property during the various stages of manufacture. This they have done explicitly; and the fact that Wainwrieht had an interest in the residue of the avails of the lumber after sale (which sufficiently accounts for the stipulation as to drawing in bad weather, etc.), is in entire harmony with the vesting of the legal title in the property in Sack-rider & Wait, during the entire process of its conversion into lumber. The case is easily distinguishable from Stephens v. Santee, (49 N. Y., 35.) In that case, according to the statement of Grover, J., the owner of land sold 1,000 ties to the defendant, at twelve cents a piece, wdtich such owner was to cut and deliver; and the ties were to be inspected, and the defendant to take only such as were merchantable. There was a verbal stipulation that the title to the ties—necessarily the 1,000 merchantable ones, and no other, — was to vest in the defendant, as soon as the timber was cut. This court held, in favor of creditors of the owner, that title did not pass, nevertheless, until the ties were inspected and culled, and those merchantable selected, because, of necessity, they could not be ascertained before that time. The court expressly distinguishes the case from those where the title to all the property, irrespective of selection, Avas to pass. It would have been like the present, if the agreement had pro-Added that all the timber cut was to belong to the defendant, and not merely the merchantable ties to be made from such timber, and Avhich could not be ascertained until after they had become merchantable ties. The owner of the land had both possession and title until the ties were culled. Here Wait & Saekrider Avere to take possession of all the logs, and expressly to have the title to them, and all the lumber made from them. Their advances Avere not to exceed two dollars a thousand upon the merchantable lumber, and they were to draAV only that grade to the river ; but these provisions did not affect their control over all the products. It merely *460 regulated the accounting for the proceeds after the lumber was sold. The counsel for the respondent admits that Sackrider & Wait had a lien upon the lumber for the amount of their claims, and the court below hold that by the provision of the contract they had title to the lumber, “ and such title to the logs, as was necessary to secure that end.” As the defendant appears in this case as a mere intruder and wrongdoer, either of these possessory rights would probably be sufficient to support this action against him ; but we have thought it more satisfactory to construe definitely the contract. The respondent insists that, even conceding title in Sack-rider & Wait, the evidence docs not show that it ever passed to the plaintiff; and that to give effect to the attempted transfer to him for a debt due from Sackrider & Wait, would be in fraud of Wainwright’s rights. To raise the last objection docs not he in the defendant’s mouth ; but, as there is no evidence that the plaintiff is not solvent, or that the lumber was fraudulently sold, it is impossible to see what reason Wainwright would have to complain of the transaction, if he were before the court. He has apparently received the stipulated • advances and will be entitled to all the avails of the lumber, over and above Sackrider & Wait's contract claims ; and if the latter do not draw it to the river, his position is by se- much the better, as they cannot claim the $1.50 £or drawing. If Sackrider & Wait should claim that allowance, in settlement with Wainwright, because of their terms of sale to the plaintiff, although now testifying that the lumber was worth the same price, and was accepted by him at the mill, it will be for Wainwright then to dispute such claim. It is unnecessary to decide whether the bill of sale given to the plaintiff, on the third of October, passed the title to all or any of the lumber now claimed, or was but an executory contract of sale; for the transfer to the plaintiff of the 189,640 feet, previous to its conversion by the defendant, *461 was complete; an! the contract, so far as executory with regard to it, was executed, by its identification, measuring, marking, and setting apart, in pursuance thereof in November, 187-1, Palmer acting for the plaintiff and accepting this lumber from Sackrider & Wait. (Terry v. Wheeler, 25 N. Y., 520; Bradley v. Wheeler, 44 id., 495.) The order of the General Term must be reversed, and the judgment upon the report of the referee affirmed, with costs. . Order reversed and judgment accordingly.