Izett v. Stetson & Post Mill Co.

• Decision Date: 30 March 1900
• Citation: 22 Wash. 300,60 P. 1128
• Court: Washington Supreme Court
• Parties: IZETT et al. v. STETSON & POST MILL CO.

60 P. 1128

22 Wash. 300

IZETT et al. v. STETSON & POST MILL CO.

Supreme Court of Washington

March 30, 1900

Appeal from superior court, King county; E. D. Benson, Judge.

Action by James A. Izett and another against the Stetson & Post Mill Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

John E. Humphries, William E. Humphrey, and Harrison Bostwick, for appellant.

McCutcheon & Gilliam, for respondents.

REAVIS, J.

Action to recover the value of a lot of saw logs sold and delivered by respondents to appellant. Respondents contracted to sell to appellant logs which respondents were getting out and rafting at Camano Island. The price to be paid was agreed upon, and was to be paid when the logs were scaled. There was no agreement as to where the scaling should be done. When a raft was gotten out, respondents notified appellant that it was ready. Appellants sent a tug, with an order to deliver the logs to the tug, and they were so delivered. The raft delivered to the tug contained 308 logs, but the tug delivered only 112 at the mill of appellant, near Seattle. The remaining 196 logs were abandoned at or near the mouth of the Snohomish river and lost. Respondents caused the 112 logs taken to the mill to be scaled, and brought this action to recover the value of all the 308 logs.

Three errors are assigned by appellant: In denying appellant's motion for a non-suit; in denying motion of appellant for judgment at the close of the trial; and in overruling the motion of appellant for a new trial. Substantial evidence was produced by respondents, tending to show that the 308 logs were delivered to a tug sent by appellant with authority to receive the logs. There was no controversy as to the price to be paid for the logs. The testimony also tended to prove that 196 logs of the lot were lost by the tug, and that appellant when notified, refused to recover the logs; and the value of the logs was proven at the trial. Appellant contended that the logs were to be paid for by a sisty days' acceptance and also that the logs were not delivered. At appellant's request these two propositions were submitted to the jury, and it was specially found that there was no provision in the contract between the parties that payment was to be made by a sixty days' acceptance; also, that the delivery was to be made where the tug received the logs and the jury found a general verdict for $1,275, the...