Rashford Lumber Co. v. Dolan

McBRIDE, J. As to the amount and quality of lumber received by defendant under the agreement, the evidence is somewhat contradictory, but we are precluded by the findings of the court from weighing the evidence on that subject and are required by the law to assume that such findings are correct. The only question left for our consideration is the plea urged by the defendant that the plaintiff has failed to comply with the laws of Oregon by transacting business in this state without filing a declaration of its intention so to do, paying its license fee and appointing an attorney-in-fact in this state. The plaintiff is a lumber manufacturing corporation of the State of Washington having its principal place of business at Amboy, in that state. A large part of its business has been the manufacture of railroad ties which were sold and delivered to the O. W. R. & N. railway corporation in Washington and delivered upon the cars in that state for transportation to the State of Oregon, which was plainly an interstate *576 transaction and no infraction of the Oregon laws: Bertin & Lapori v. Mattison, 69 Or. 470, 475 (139 Pac. 330); Loveland v. Warner, 103 Or. 638, 657 (204 Pac. 622, 206 Pac. 298). The next transaction detailed in the evidence relates to the sale by plaintiff of certain material to the National Tank & Pipe Company to be used in the manufacturing plant of that company. The facts seem to be that in the year 1923, or about that time, the National Tank & Pipe Company made an agreement that it would take all of certain kinds of lumber that the Rashford Lumber Company could saw at its mill which was suitable for its purpose. Perhaps we cannot state the contract more briefly than to give it in the language of Mr. L. E. Long, the active manager of the National Tank & Pipe Company, which is as follows: “We the year previous had done business with Mr. Rashford and when the fall season came on there he couldn’t haul the lumber in, he came to us and asked us if he would cut all winter, would we be willing to buy the stuff from him, and we told him we would providing he would take care of it so that it would not have this black sap, this black stain on it, and he agreed to that, and we agreed to purchase such as he accumulated at a price to be agreed upon, when he shipped. He was to come to us when he shipped and we was to get together on a matter of price. And shortly before they were able to haul Mr. Rashford came into the office and we agreed on a price for this material, and when the road was ready he shipped it in, and as the shipments came in, why, there was a good deal of it stained with this sap, and we had to lay it to one side, because we could not handle it. Mr. Rashford then came to us and told us that he had some two-inch lumber too that he was very anxious to move, but it had been ‘tight-piled,’ and *577 some of it might be stained, — and we told him we could not use the stained material, but that we would take the lumber that we could use, and he shipped it in. It seems that when the lumber came in there was a good deal of it stained, and we had to lay it to one side and we accumulated quite a bit of it and Mr. Rashford wondered what he was going to do with it, and I suggested that he might go to the Dolan Wrecking & Construction Company and sell it to them.” The shipments made under this contract began in June, 1923, and continued to September. It appears from the testimony of plaintiff’s witness that none of the lumber was of an inferior quality, but that, principally, by reason of a black stain arising from sap, a percentage of it was not of a character to admit of the staining process used by the National Tank & Pipe Company, although suitable for other purposes where paint was to be used. A small portion was rather under the required sizes for cross-arms, et cetera, but plaintiff contends that, other than for these purposes, it was good lumber. The lumber was partially but not very carefully inspected at Yacolt where it was loaded on the cars for shipment to Kenton, but was finally inspected by the National Tank & Pipe Company as it was unloaded at Kenton as seems to have been contemplated in the first place, and such as the company deemed to be unfit for its purpose was rejected and piled separately in that company’s yard. Up to the time the lumber was unloaded, it was purely an interstate shipment, and there is nothing in the evidence that there was any collusion between plaintiff and the National Tank & Pipe Company that the rejections should be made for the purpose of covering up an Oregon transaction *578 between plaintiff and any prospective buyer of tbe rejected material. Plaintiff was receiving- on an average of $37.50 at least for such material as should be accepted by the National Tank & Pipe Company, and it was to its best interest that every stick shipped should be accepted as its loss by rejection would be $17 on every thousand feet. The National Tank & Pipe Company was in the market for material fit for its purposes and it was not to its interest to reject anything suitable for its use. The rejection of a percentage of the lumber shipped was a mere incident of the shipment embarrassing to both parties. The National Tank & Pipe Company finally grew impatient at having- its yard “cluttered up” with this rejected material which, while it might be useful and fit in some lines of business, was merely a nuisance to them. "When they remonstrated at being encumbered with these rejections plaintiff faced an emergency. The timber had to be disposed of in some way and plaintiff -was practically compelled to dispose of it, and that soon. It, therefore, sold the lumber to the defendant for a much less price than it hoped to have received from the National Tank & Pipe Company and, in the emergency, it probably could have done nothing else. It was an isolated and an emergency transaction thrust upon plaintiff by the peculiar circumstances of the case. The plaintiff had no office or place of business in this state and has manifested no disposition to make this state a base of operation, or to engage generally in the business of lumber dealing in Oregon. Whatever view we might take of the evidence, as to the quantity of lumber defendant actually received, is foreclosed by the finding of the Circuit Court, and, as to the question here discussed, we believe the transaction between plaintiff and de *579 fendant is within the rule announced in Commercial Bank v. Sherman, 28 Or. 573 (43 Pac. 658, 52 Am. St. Rep. 811); Berlin & Lepori v. Mattison, supra; Major Creek Lum. Co. v. Johnson, 99 Or. 172 (195 Pac. 177); Deardorf v. Idaho Nat. Harvester Co., 90 Or. 425 (177 Pac. 33); Endicott, Johnson & Co. v. Multnomah Co., 96 Or. 679 (190 Pac. 1109). Courts are reluctant to enforce a forfeiture of a claim upon a strained construction of a statute, and such is the case here. The judgment is affirmed. Affirmed. Band, C. J., and Coshow and Brown, JJ., concur.