Denny v. Sayward

• Decision Date: 28 December 1894
• Parties: DENNY ET AL. v. SAYWARD.
• Court: Washington Supreme Court

39 P. 119

10 Wash. 422

DENNY ET AL. v. SAYWARD.

Supreme Court of Washington

December 28, 1894

Appeal from superior court, King county; R. Osborn, Judge.

Action by A. A. Denny and F. X. Prefontaine, executors, against William P. Sayward. From a judgment for plaintiffs, defendant appeals. Affirmed.

Battle & Shipley, for appellant.

Bausman Kelleher & Emory, for respondents.

HOYT J.

Plaintiffs brought this action to recover money alleged to have been paid by them in part satisfaction of a judgment against their decedent. Such judgment was recovered in a suit brought upon a contract which was in substantially the following language "This agreement, made and entered into this 3d day of September, 1880, by and between George A. Meigs and William P Sayward, by his attorney in fact and managing agent, George A. Meigs, and James Crawford and William A. Harrington partners, doing business under the firm name of Crawford & Harrington, the parties of the first part, and Granville O. Haller and Donald Dingwall, by their attorney in fact and agent, G. Morris Haller, the parties of the second part, witnesseth: That the parties of the first part agree to and have purchased from and of the parties of the second part, and the said parties of the second part agree to and have sold to the said parties of the first part, all the saw logs belonging to the said Donald Dingwall, and which the said Granville O. Haller has a mortgage upon, now situate, lying, or being in the Samish river and the sloughs adjacent thereto in Whatcom county, W. T., and estimated to be about three and one-half million feet, more or less, upon the terms and conditions following, to wit, that is to say: Whereas the Meigs Lumber and Ship Building Company is indebted to Granville O. Haller in the sum of three thousand five hundred and ninety-six and 75/100 ($3,596.75) dollars, with interest thereon from May 20, 1879, until paid, at the rate of ten per cent, per annum, besides costs, upon a judgment entered in the district court of the 3d judicial district of Washington Territory, holding terms at Port Townsend, on the 22d day of May, 1879, and wholly unpaid: Now, therefore, the said logs are sold at Samish river, and are to be scaled by Edward McTaggert, the government surveyor of logs at said place, before removal therefrom, said surveyor to scale the same according to the laws of Washington Territory now in force, and is to exclude from said scale the damaged sap upon said logs, and also such logs as are not merchantable. The said parties of the first part shall furnish to said parties of the second part such additional boom chains as shall be necessary for booming said logs, and shall begin taking said logs at once, and shall continue taking said logs at the rate of at least five hundred thousand feet per month if the said Dingwall shall have them boomed that fast, and shall have all said logs turned away by the first day of March, 1881, and shall pay for the same to G. Morris Haller, or his order, at the rate of five dollars per thousand feet for each and every thousand feet so scaled, according to the certificate of said Edward McTaggert; and, for every thousand feet so paid for, said parties of the second part shall credit one dollar upon the said judgment, said payments to be made by said Crawford and Harrington at the bank of Dexter, Horton & Co., in Seattle, sixty days from the date of the removal of each boom of said logs from said Samish river, and shall be of the full price of the logs so removed; and, in case said logs are not removed as fast as five hundred thousand feet per month, still the said logs shall be paid for sixty days from the date that notice is given to said Crawford and Harrington that such amount is ready for removal, the same as if they had been taken and removed on the date of said notice. And if the said logs are not all removed by the 1st day of March, 18881, still the balance remaining shall be paid for as aforesaid, sixty days from said time, the same as if said logs were removed on said day; and said parties of the first part also agree to pay as aforesaid, at the time the last payment of said logs is due as aforesaid, whatever balance remains due upon said judgment, together with the costs therein. In witness whereof, the parties hereto have hereunto set their hands and seals, this 8th day of September, 1880. [Signed] G. A. Meigs. [Seal.] W. P. Sayward, [Seal.] by His Attorney in Fact, G. A. Meigs. [Seal.] James Crawford. [Seal.] Wm. A. Harrington. [Seal.] Crawford & Harrington. [Seal.] Granville O. Haller, by His Attorney in Fact, G. Morris Haller. [Seal.] Donald Dingwall, by His Attorney in Fact, G. Morris Haller, [Seal.]"

The ground upon which the recovery was sought in this action was that James Crawford and William A Harrington, against whom the judgment was rendered which plaintiffs had been required to pay, were, though named as principals in said contract, in fact only sureties for the defendant. Upon the trial the following facts were sufficiently proven to require their submission to the jury for determination: That, prior to 1880, George A. Meigs, or the Meigs Lumber & Ship Building Company, was the owner and operator of certain sawmills known as the "Port Madison Mills," together with a large amount of timber land and other property usually owned in connection with the operation of such mills; that thereafter, and before the execution of the contract above referred to, these mills and the property owned in connection therewith were sold to the defendant; that he entered into the possession thereof, and continued to operate said mills as they had been before operated; that for the purposes of the operation of such mills defendant constituted George A. Meigs his agent, with full power to transact all business necessary to or usual in connection with such operation, including the purchasing of logs for the use of the mills and the sale of their products; that said Meigs, as such agent, had been so operating these mills for some time before the contract in question was entered into, and, as incident to such operation, had, in the name of said defendant, purchased large amounts of saw logs for cash and upon credit; that his action in so doing was known to the defendant, and had been fully ratified and confirmed by him; that the said Meigs, as such agent, desired to purchase for the use of said mills a lot of saw logs, consisting of about 3,500,000 feet, owned by one Donald Dingwall,and situated in the Samish slough, upon which logs Granville O. Haller had a mortgage, so that they could not be sold without his consent; that he desired to purchase the same upon credit; that the owner and said Haller refused to sell the logs on credit, unless security in writing for the performance of the contract of purchase were furnished by said Meigs, as agent for the defendant; that it was agreed between said Meigs, as such agent, and said Dingwall and Haller, that they would make the sale upon credit if James Crawford and William A. Harrington would become sureties for the performance of the terms thereof by the defendant; that for the purpose of evidencing such sale, and the agreement of suretyship upon the part of said James Crawford and William A. Harrington, the contract above set out was entered into; that, for convenience, the said Crawford and Harrington and the said Meigs were joined with defendant as principals, but that in fact they only signed and became liable upon the contract as sureties for said defendant; that thereafter, and upon alleged noncompliance with the terms of the contract, an action was brought by Granville O. Haller, who had succeeded to the rights of said Donald Dingwall, against said George A. Meigs, the defendant, James Crawford, and William A. Harrington; that in such suit no service was had upon the defendant; that the defendants Crawford and Harrington appeared and defended the action; that the said George A. Meigs also defended; that the cause, as against the defendants who were served, was tried upon its merits, and resulted in a judgment of $15,000, or more, against them; that thereafter said Crawford died, leaving a last will and testament, of which the plaintiffs were duly appointed and qualified as executors; that, as such executors, they were called upon to and did pay seven or eight thousand dollars of the judgment so recovered; that said defendant, at the time of the execution of said contract was, and ever since has been, a nonresident of the state of Washington, residing in the province of British Columbia. Other facts necessary for an understanding of the points decided will appear in the course of the opinion. The trial resulted in favor of the plaintiffs, and from the judgment against him the defendant has...