Dougherty v. Haggerty

Mr. Justice Mercur delivered the opinion of the court. November 17th 1879. This was an action of replevin for a quantity of hemlock lumber. The plaintiff claimed the lumber under a written agreement made between him and his son, Samuel T. Dougherty. The defendant purchased it at sheriff’s sale on an execution against Samuel. The court being of the opinion that there was not sufficient change of possession to vest the property in the plaintiff, directed the jury to find for the defendant. This constitutes the main cause of complaint. The evidence shows that Samuel owned the undivided one-half of a tract of timber land containing 439 acres, situate in Spring Creek township, Elk county. He also owned an interest in a smaller lot, with a saw-mill thereon. The plaintiff owned no interest in either the lands or mill and had no possession thereof. [519] The agreement declares that Samuel “sells and delivers to the said Thomas Dougherty one hundred thousand feet, more or less, of hemlock timber, board measure, at the rate of fifty cents per thousand feet, board measure; the said hemlock is to be taken off” (the tract aforesaid) “ and the said lumber is to be cut and removed just as soon as it can be ; and in consideration and in connection with the above said Samuel agrees to cut, haul, saw, raft, and run to market the above hemlock timber at the rate of five dollars per thousand, to be paid as the work progresses, and said lumber to be run to any point on.the Allegheny to Pittsburgh.” Thus the agreement specified no particular trees. None were designated or marked by the parties. No such possession was taken as the nature of the property would have admitted of. Samuel could cut, anywhere on the tract, a sufficient number to make the stipulated quantity of lumber. The price to be paid per thousand in the tree was not entirely severed from the other part of the agreement. It proceeded to declare “in consideration and in connection” therewith, Samuel was to perform all the work and labor required to convert the trees into lumber, and to run the latter to market. It was substantially an agreement to deliver to the plaintiff, at some market on the river, the quantity of lumber specified, and that it might be cut anywhere on the tract mentioned. He was to pay five dollars and fifty cents per thousand for it delivered at a river market. Fifty cents per thousand feet was for stumpage, and the residue for manufacturing and delivering the lumber. Both sums were blended together and formed a part of one agreement. The plaintiff did not agree to perform any part of the work in cutting the trees or in manufacturing the lumber, and he did not. He was not present when the trees were cut. He appears to have paid $50 on the execution of the contract, and $400 two and a half months thereafter. After the logs were cut, and before they reached the mill, an employee of Samuel, at the request of the plaintiff, and in his presence, marked the initials of the latter on them. The plaintiff was once at the mill while they were being sawed; but he gave no directions in regard to the sawing. He took no separate possession of the logs and no possession of the lumber. He did not waive nor change the place of delivery named in the agreement. When Samuel piled the lumber at his mill he marked the name of the plaintiff on the piles. The latter was not present, and this worked no actual or legal change in the possession. It indicated a present intention to deliver that specific lumber at some future time, to the plaintiff; but the right of property did not thereby pass. Notwithstanding these marks, Samuel might have substituted other lumber cut from any other trees on the same tract, and it would have been a full compliance with his agreement. Although the plaintiff’s name was thus marked on the piles [520] at the mill, yet the lumber was still to be rafted and run to market by Samuel before the plaintiff was to take possession thereof. While it was yet lying at the mill, and before the plaintiff had accepted it, or it had reached the market where Samuel was to' deliver it, it was levied on and sold as the property of the latter and bought by the defendant. The learned judge was right in holding the plaintiff had not such a possession as to prevent the lumber being sold on execution by a creditor of Samuel. This view being decisive of the case, it is not necessary to consider the other assignments. Judgment affirmed.