Dew v. Pearson

• Decision Date: 24 May 1913
• Citation: 132 P. 412,73 Wash. 602
• Parties: DEW v. PEARSON et ux.
• Court: Washington Supreme Court

132 P. 412

73 Wash. 602

DEW v. PEARSON et ux.

Supreme Court of Washington

May 24, 1913

Department 2. Appeal from Superior Court, Chehalis County; Mason Irwin Judge.

Action by Thomas Dew against J. C. Pearson and wife. From a judgment of dismissal rendered on sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Frank Beam, of Aberdeen, for appellant.

Boner &amp Boner, of Aberdeen, for respondents.

ELLIS, J.

The plaintiff, Thomas Dew, prosecutes this appeal from a judgment dismissing his action upon his election to stand upon his complaint; a demurrer thereto having been sustained. We will designate the parties throughout as plaintiff and defendants. The complaint alleged the sale by the defendants, as parties of the first part, to a copartnership consisting of the plaintiff and two others, as parties of the second part, of the timber on certain land in Chehalis county owned by the defendants, together with a right to use for floatage purpose the waters of the Neuskah river, flowing through this and other land of the defendants, under a contract a copy of which was attached to and made a part of the complaint. The contract was dated November 22, 1910, and contained the following provisions:

'First. The purchase price for said timber and water right is five thousand ($5,000.00) dollars, of which the sum of three hundred ($300) dollars has this day been paid as earnest the receipt whereof is hereby acknowledged by the said parties of the first part, and the further sum of four thousand seven hundred ($4,700.00) to be paid on or before six months from the date hereof with interest thereon from this date until paid at the rate of six per cent. (6%) per annum, payments to be made as follows, to wit: Four dollars stumpage per thousand feet for all timber cut and removed off of aforesaid land or otherwise, by said parties of the second part or their assigns until the said debt of $4,700.00 with interest, is fully paid; in case the said four dollars stumpage is paid in time checks by the purchaser or purchasers of said logs or timber the parties of the second part agree to stand the discount, if any is exacted by the bank upon which the check is drawn before credit is given in payment of the aforesaid debt.

'Second. The second parties agree to commence operation at once in cutting and removing timber sold off of said land and continue the same until all the timber they desire to take has been removed, which time for removing the same shall not extend beyond eighteen months from date hereof.

'Third. The water right herein granted by first parties to second parties shall only be used by second parties to float logs and timber in said river over, through and across the aforesaid described land and the second parties agree not to dam or splash said Neuskah river so as to cause the water to raise and overflow its banks and flood the bottoms or upland of said river, and it is agreed by the parties hereto that said water right shall not extend beyond thirty months from date hereof, and the land lying south of said river is hereby granted to second parties to build logging road to get the said timber out to said river.

'Fourth. The payment for the consideration price herein mentioned is the essence of this contract and in case of failure of said parties of the second part to make the payment for stumpage or perform any of the covenants on their part this contract shall be forfeited at the election of the said parties of the first part and they shall have the right to re-enter and take possession of said land and premises and every part thereof.

'Fifth. This contract or agreement shall not be assigned, transferred or sold without the written consent of the parties of the first part being first obtained.'

It is alleged that the defendants represented that there were on the land at least 1,500,000 feet of merchantable timber; that the plaintiff and his partners began work and continued to cut and remove the timber until about the middle of April 1911, at which time they had cut about 175,000 feet of logs, the greater part of which was in the river, when his partners became dissatisfied, abandoned the work, and withdrew from the partnership with the plaintiff's consent and with notice to the defendants; that the plaintiff, without objection from the defendants, continued to cut and get out logs under the contract until about May 20, 1911; that on or about May 16, 1911, and while no payments were due under the terms of the contract, the defendants, electing to violate the terms of the contract, filed with the auditor of Chehalis county a claim of lien for the sum of $4,201.51, as being the original balance due under the terms of the contract, and about the same time served notice upon the plaintiff to cease treapassing upon, and to cease removing logs from, the land, and to cease removing any logs cut from the lands of the defendants wherever they might be; that thereupon the plaintiff was compelled to cease logging under the contract; that thereafter, on the 24th day of May, 1911, the defendants filed another claim of lien for the sum of $4,201.51, alleged to be due and owing under the terms of the contract; that, according to the terms of the contract, the plaintiff promised and agreed to pay the sum of $4 a thousand stumpage on sale of logs taken from the land; that the defendants had received as stumpage from the sale of logs the sum of $498.49; and that the plaintiff was at all times willing to pay such stumpage for sale of any logs taken from the land. The complaint then alleged, in substance, that, had the plaintiff been permitted to continue work under the contract, he could have realized a profit of $3.50 a thousand over and above the stumpage and cost of cutting and removing the logs; that the plaintiff had cut and removed from the body of the timber about 200,000 feet, leaving about 1,300,000 feet of timber covered by the contract; that the plaintiff has always been and is now willing and able to perform the contract; that the time of performance has not elapsed; that the defendants have violated the contract by preventing performance by the plaintiff to his damage in the sum of $4,550. Other additional damages, which it is not necessary to enumerate, were alleged, making a total alleged...