Fancher v. Landreth, 34165
| Decision Date | 21 November 1957 |
| Docket Number | No. 34165,34165 |
| Citation | 317 P.2d 1066,51 Wn.2d 297 |
| Parties | R. M. FANCHER and Wanda M. Fancher, his wife, Respondents, v. Ivan K. LANDRETH and Lucille Landreth, his wife, T. L. Landreth and Mary Jane Landreth, his wife, T. L. Landreth and Ivan K. Landreth, copartners, d/b/a Landreth Timber Company, and the Landreth Timber Company, a partnership, Appellants. |
| Court | Washington Supreme Court |
Engst & Phelps, Wenatchee, for appellants.
John Hancock, Okanogan, for respondents.
This is an appeal from a judgment in favor of plaintiffs, in consolidated actions to foreclose timber liens, tried to the court.
October 1, 1953, plaintiffs contracted to sell to Tonasket Lumber Company certain timber which was located on plaintiffs' lands.
The contract provided:
'Said Sellers agree to sell and the said Purchaser agrees to buy all merchantable timber now growing upon the herein described real property for which said Purchaser agrees to pay the following prices:
Pine....... $20.00
Fir & Larch 8.00
* * *
* * * * * *'
Tonasket Lumber Company partially performed the contract, and then went into receivership. August 16, 1954, the receiver, with court approval, assigned the contract to T. L. Landreth and Ivan Landreth, copartners doing business as Landreth Timber Company.
The Landreths immediately began to remove timber. Each week they submitted scale slips to plaintiffs and on the following Monday sent checks in payment for the timber removed. The scale was computed by use of the Scribner Decimal C Log Rule, by finding the length of the log, then applying the rule to an average of the diameter of the small end, including the bark on one side. (The same method of scaling was done by the Tonasket Lumber Company.) If the taper was extreme, the scaler would approximate the diameter of the unseen end, including the bark on one side, and make such allowance above two inches as he deemed justified. All scales were made at the defendants' mill in Tonasket, as provided by the contract.
This procedure was followed until January 15, 1956, after which the purchasers continued sending weekly scale slips, but made no further payments. This was because they believed, on the basis of a spot cruise, that the remaining merchantable timber was approximately equal to the credit due them under the contract. They contended that the 'one bark' method of scaling was wrong and that the proper and accepted method was to measure the wood only; that their sole reason for using the 'one bark' method was for the benefit of the 'gyppo' truckers, to compensate them for extra weight carried.
Commencing January 25, 1956, plaintiffs filed timber lien notices and later brought two actions to foreclose them, which actions were consolidated for trial. In their answers, defendants alleged that they had overpaid eleven per cent on the contract, due to the inclusion of one bark in the scale measurements. They alleged that on August 16, 1954, the day the contract was assigned to them, they mailed the following letter to Mr. Fancher (Fancher denied having received it):
'Landreth Timber Co.
Tonasket, Wash.
August 16, 1954
'Mr. R. M. Fancher
Tonasket, Washington
'Dear Sir:
'We have purchased the timber contract with you that was owned by the Tonasket Lumber Co.
'The assignment of this contract has been approved by the Superior Court of Okanogan County and the Receiver for the Tonasket Lumber Co. According to the records of the Receiver, we have a prepaid credit of $5,091.39 on this contract that we will apply on the last part of the logs removed.
'We will mail your payment for the logs by the close of the day on Monday for logs received at the mill the previous week, and will enclose the original copy of the loggers scale slips. The payment to you on the basis of the loggers scale slips will constitute an accumulative overpayment to you of a little more than 11% above the price and terms of the timber contract inasmuch as we will be giving the loggers an additional 1" of scale on the Scribner Decimal C Rule for hauling the bark of the logs. The standard mill log scale in this area is based on the Scribner Decimal C Rule which is computed from measuring the wood only.
'We hope this will meet with your approval.
'Yours very truly,
[Exhibit is carbon copy By bearing no signature]' After trial, the court entered findings, conclusions, and judgment in favor of ...
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