Tallahatchie Lumber Co. v. Thatch

Per Curiam. The judgment appealed from in this case was affirmed without an opinion. The suggestion of error directs attention to the fact that this is the second suit which has presented for construction the written contract between the Tallahatchie Lumber Company and the Greenwood Sawmill Company, represents that other suits depend largely upon the construction of this contract;, and suggests that an opinion should he written. In response to request of counsel for an opinion we outline briefly the facts and our conclusions on the points argued. Appellee, C. J. Thatch, owned and operated a small country store near a sawmill owned and operated by the Greenwood Sawmill Company,' a partnership composed of J. M. Cos and W. H. Mitchell. The owners of this sawmill manufactured hardwood into lumber, and operated at Maybank a small station in Forrest county. The Laborers of the Greenwood Sawmill Company bought groceries and other supplies from Mr. Thatch upon orders of the company, and to pay their accounts transferred and assigned' in writing to Mr. Thatch their labor claims against the mill. The form of the written order which the sawmill company gave its laborers was substantially as follows: — 267 — “Mrs. C. J. Thatch, O'. K. Order — — (name of employe) $-, Mdse. [Signed] Greenwood Saw Mill'Co., Cox:-14. ’ ’ In addition to this form of order, the declaration which was filed by appellee against the Greenwood Sawmill Company charges that the employees executed written assignments of their labor claims and the Greenwood Sawmill Company upon request failing to honor these orders, appellee, under chapter 131, Laws of 1908, sued to enforce a lien on the lumber and timber of the Greenwood Sawmill Company for the wages due the laborers, and assigned in writing to the appellee.' A writ of seizure was duly issued as provided by statute, and levied on approximately five hundred thousand feet of hardwood timber in the yard of the Greenwood Sawmill Company at Maybank. Appellant, the Talla-hatchie Lumber Company, a corporation, filed a claimant’s affidavit, claiming to be the owner of the lumber levied upon. Cox and Mitchell, the defendants in the suit- of appellee, interposed no defense, although personally served with process, and the cause proceeded to a final judgment against' them on the debt issue and on the right of appellee as plaintiff to a lien upon the lumber levied upon. Issue was duly tendered and made up on the claimant’s affidavit, and a trial had, resulting in a judgment for appellee. From this judgment the claimant appeals. On the trial of the claimant’s issue appellant relied upon the following written contract: “This contract made in duplicate and entered into this 15th day of June, 1914, by and between the Talla-hatchie Lumber Co. of Phillip, county of Tallahatchie, state of Mississippi, party of the first part, and the Greenwood Sawmill Company, composed of W. H. Mitchell and J. M. Cox, of Greenwood, county-of Leflore, state of Mississippi, party of the'second part, witnesseth: “The party of the second part bargains, transfers ' and sells to the party of the first part all of the gum, — 268 — oak, and magnolia lumber sawed at this sawmill located at Maybank, Mississippi, on the Gulf & Ship Island Railroad, during tbe nest sis months, estimated to be about one million feet at the rate of about fifteen thousand feet per day, at the following prices and terms and conditions specified: “Plain red and white oak: Is and 2s, $34.00; No. 1 common, $16.00; No. 2 common, $8.00. " “Sap gum: Is and 2s, $12.50; No. 1 common, $10.50; No. 2 common, $8.50. “Red gum: Is and 2s, $20.00; No. 1 common, $10.50; No. 2 common, $8.50. “Magnolia: Is and 2s, $12.50; No. 1 common, $10.50; No. 2 common, $8.50. “All of the above prices are for lumber f. o. b. cars Maybank, Mississippi, which lumber shall be approximately estimated by a representative of the party of the first part on or about, the 26th of each month, an advance payment of nine dollars ($9.00) per M. ft. to be made by check or sight draft, and the party of the second part agrees to give the party of the first part their note for four months at the time of each estimate for like amount, the same to bear interest at (6%) six per cent., per annum, the first estimate in advance to be made June 26th, for about one hundred and fifty thousand ft. or more and' all future estimates to be made for one hundred and fifty thousand ft. or more. Sawing of this lumber shall commence at once. This lumber shall be sawed for thickness as per the instructions the party of the first shall specify from time to time in writing. All lumber covered by this contract shall be cut to the standard lengths of twelve, fourteen and sixteen foot (with as much fourteen and sixteen foot lengths as possible) and .trimmed with the understanding that the usual percentage of short lumber will — 269 — be allowed according’ to the National Hardwood Lumber Association Enles. All lumber shall be cut entire square and plump enough so that when dry it will be up to the required thickness; no miscuts accepted. “Promptly each and every day as the lumber is cut, it shall be taken and put on sticks at a distance of not less than one hundred and twenty-five feet from the mill or any other building, on good substantial foundations with plenty of pitch, and well up from the ground. This stock shall be stacked in narrow piles, with narrow crosses not over two feet apart on the gum or thirty im apart on oak, the crosses placed at both ends so that lumber cannot check, and piled loosely (two to three inches, air spaces in oak — four to six inches in gum) with plenty of pitch so as to avoid all stain possible, and the piles, to be covered with three dollar oak or gum as soon as completed so as to keep the lumber from warping.. Each grade and thickness of lumber shall be piled in separate stacks. Each length to be piled in separate-stacks. “The party of the second part shall load on cars according to grade and thickness we requested by party of the first part, whose representative shall inspect and measure same as it is being loaded. The party of the first part agrees that when lumber is loaded out and bills of lading and tallies sent in to the main office, to pay the balance due on same (this balance being the difference between the advance and the full price) less (2%) two per cent on the entire invoice. “The party of the second part agrees, obligates and binds itself to the party of the first part to protect it against all claims or liens against the said lumber for timber or wages Of employees of the party of the second part. “In testimony whereof the Tallahatchie Lumber Company and the Greenwood Sawmill Company have signed — 270 — this instrument in duplicate this day and date above written. “Tallahatchie Lumber Co., W. H. Dicks, Yice-Pres. GeeeNwood Sawmill Co., “W. H. Mitchell, “J. M. Cox.” There was a peremptory instruction in favor of plaintiff, Thatch, and the granting of this instruction is the principal error assigned. The contentions of appellant are that the court erred in holding the final judgment of Thatch against the Greenwood Sawmill Company was conclusive against the claimant on the plaintiff’s right to a lien upon the lumber seized; that there was a conflict in the testimony as to the possession of the lumber at the time it was levied upon, appellant contending that the Greenwood Sawmill Company had failed in business' and virtually abandoned their lumber yard and turned all manufactured lumber over to the agent of appellant; that appellant had paid the full purchase price of the lumber, and was the owner thereof at the time the writ of seizure was levied; and that by virtue .of the written contract aforesaid, title to the lumber passed in the process of its manufacture and before any of the lumber was seized; that in any event the contract operated as a pledge, and appellant had an equitable lien or claim for the money advanced or paid for the manufacture of the lumber; and that in all events a lien as to a portion of the debt sued for was barred by the statute of limitations of three months provided for in the statute. We will first consider the principal point relied upon by counsel; that is, that the written contract operated to convey the title to the Tallahatchie Lumber Company before the lumber was finally loaded and shipped. While the time for delivery and the question whether delivery of personal property has in fact been made — 271 — is a question largely governed by the intention of the parties, this point is ruled by the ease of Hart v. Livermore Foundry & Machine Co., 72 Miss. 809, 17 So. 769, the facts of which are strikingly similar to those of the present case. The elaborate opinion of our court by Cooper, C. J., completely answers the-contention that the title and possession of the lumber passed to the appellant. In the case at bar the Greenwood Sawmill Company was to manufacture the lumber .according to certain grades and specifications. This lumber was to be stacked on the yards, and afterwards to be loaded “on cars according to grades and thickness, as requested by party of the second part, whose representatives shall inspect and measure same as it is being loaded.” The balance due was not to be paid until the “lumber is loaded out and bills of lading and tally sent in to the main office.” The contract further expressly provides “no miscuts accepted,” and at another point that the Greenwood Sawmill Company obligated itself to protect appellant “against all claims or liens against the said lumber for timber or wages of employees of the party of the first part.” It was a contract for lumber to be cut and manufactured in the future, and the definite quantity finally to be accepted and paid for could not possibly be known until all lumber w'as finally inspected. The prices, too, “are for lumber f. o. b. cars Maybank, Miss.” The contract, then, upon its execution, did not in itself convey either the title or the possession. Looking now to the proof, the facts as we interpret them do not show a material conflict as to the.possession of the lumber at the time it was seized. According to the testimony of the witness Lee the lumber was all upon the yard of the Greenwood Sawmill Company at Maybank when it was levied upon, was “ stacked-around in different places,” had not been loaded on -cars, and was in the actual possession of Mr. “Jim — 272 — Cos.” It is further shown that appellant had knowledge of Thatch’s claim, and that its agent, Mr. Evans, wrote appellee as follows: “Mr Cox has given us a statement of all the labor, contractors, and your account of three hundred one dollars and fifty cents and at any time that you feel these claims are not being given proper attention we would be glad to have you advise us as we are anxious to get the matter straightened out as quickly as possible.” This letter was written from Philipp, Miss., by Evans,, the, agent of appellant company, January 8, 1915, and furthermore, Evans went down to Maybank in person and told appellee that if he would stop the attachment there was plenty of timber to pay everybody. It is true that Mr. Evans was introduced as a witness for the claimant and testified that the Tallahatchie Lumber Company was the owner of the lumber at the time the same was seized, but upon the cross-examination he stated that he was at Maybank as agent of the Tallahatchie Lumber Company; that the lumber at the time of its seizure was stacked on the yards; that it had not been loaded on cars; that no invoice or bills of lading had been issued; and that the only evidence of title was the written contract and the rights of appellant thereunder. The witness did state that in making advances or payments to the Greenwood Sawmill Company appellant had paid the full price of the lumber, the inference being that appellant had advanced under the contract more money than it should have advanced, and that it had not received sufficient lumber to make it whole in the transaction. There is no evidence that Evans had a final settlement, with the Greenwood Sawmill Company, or that any money whatever was paid upon the lumber after Evans weht 'to Maybank to take charge. Under these facts we think the creditors of the Greenwood Sawmill Company had a right to levy upon the manufactured products on the yards of the defendant — 273 — company. It would indeed be inequitable and contrary to public policy to permit the owners of a sawmill to contract with a purchaser for th'e entire output of the mill in a way to defeat the claims of employees and other necessary current expenses, without which logs could not be cut and hauled to the mill or the lumber sawn. The obvious purpose of the statute is to prevent any such result, so far as the employees of the sawmill are concerned. Appellant has no equitable lien on the lumber, at least no lien superior to that of the employees. The contract does not expressly provide for a lien, and under the authority of Allen v. Montgomery, 48 Miss. 101, Alexander v. Berry, 54 Miss. 422, and Hart v. Livermore Foundry & Machine Co., supra, no such lien is given by operation of law. Further, on the question that title did not pass under the contract, the cases of Mitchell v. Commonwealth, 37 Pa. 187, Hendricks v. Mocksville Furniture Co., 156 N. C. 569, 72 S. E. 592, First National Bank v. Peck, 61 App. Div. 258, 70 N. Y. Supp. 471, and Smart v. Batchelder, 57 N. H. 140, are in point. We do not understand • the rulings of the trial judge as precluding appellant from asserting its -claim to the lumber, but simply that the claimant in a collateral attack on the judgment, which appellee then . held against the Greenwood Sawmill Company, could not interpose those defenses which Cox and Mitchell might have interposed, or, in other words, that the claimant could not introduce evidence as to the character and nature of appellee’s debt. The judgment of appellee against Cox and Mitchell was conclusive as to the indebtedness claimed and the character of that 'debt. This judgment was conclusive against Cox and Mitchell upon the right of appellee to enforce a lien upon the lumber; and, to defeat the prima-facie showing of appellee, the burden of proof was upon appellant to — 274 — show a prior title or superior lien. It showed neither lien nor title. This disposes of the right of the claimant to plead the statute of limitations as to a part of the indebtedness claimed by appellee. What right has appellant to apply for Cox and Mitchell the statute of limitations, unless appellant has superior claim to the lumber. On all points argued, the judgment was properly affirmed at a former sitting of this court, and the suggestion of error should now be overruled. Overruled.