Lauber v. Johnston

• Decision Date: 08 July 1909
• Citation: 102 P. 873,54 Wash. 59
• Parties: LAUBER v. JOHNSTON.
• Court: Washington Supreme Court

102 P. 873

54 Wash. 59

LAUBER v. JOHNSTON.

Supreme Court of Washington

July 8, 1909

Appeal from Superior Court, Okanogan County; R. S. Steiner, Judge.

Action by M. Lauber against C. E. Johnston. From the judgment, both parties appeal. Affirmed.

R. P Hoskyn and C. F. Sigrist, for appellant.

E. W Taylor, for respondent.

CROW J.

This action was commenced by M. Lauber against C. E. Johnston to recover $1,129.25 for hay sold. The trial court entered judgment in favor of the plaintiff for $522.38. Both parties have appealed.

There being a cross-appeal, we will refer to the parties as plaintiff and defendant. The defendant has moved to dismiss the plaintiff's cross-appeal for want of a bond. The record shows that within the statutory time the plaintiff filed an appeal bond sufficient in form and amount. The motion is denied.

The complaint pleads two causes of action; the first alleging an oral sale of one stack of hay, containing 50 1/2 tons, made November 15, 1905, at $9.50 per ton, upon which the defendant then advanced $250. The second cause of action was based upon a written contract reading as follows 'Party of the first part [plaintiff], for and in consideration of ten dollars in hand paid, the receipt of which is hereby acknowledged, and other payments to be made and things to be done by the party of the second part [defendant], as hereinafter enumerated, promises and agrees to sell to the party of the second part all the merchantable hay except that which has been sold previous to the date of this contract, at the rate of ten dollars per ton for each and every ton of merchantable hay on the ranch of the party of the first part, located and situated on the west side of the Okanogan river, and about eight miles south of the town of Oroville of said Okanogan county, Washington. Party of the second part hereby promises and agrees to buy all the merchantable hay for sale by the party of the first part, as above mentioned, and pay for the same at the rate of ten dollars per ton for each and every ton. Party of the second part further agrees to have said hay baled before taking from the ranch of the party of the first part. Party of the second part further agrees to pay for said hay at the rate of above set forth in advance, before removing the same from the ranch of the party of the first part; that is to say if the hay purchased is all hauled away at once then said purchase price must be paid in full for all hay purchased; but should said party of the second part remove said hay in small quantities then said purchase price shall be paid at the time of said removal. And in case the entire amount of hay is not removed before the first June, 1906, then the entire amount due on the hay remaining on the ranch of the party of the first part shall be paid for at that time. But the party of the first part will give the party of the second part further time to remove said hay from his ranch, if time is desired. Party of the second part promises to pay for the baling of the said hay, and all expenses connected therewith. The ten dollars received and paid on this contract shall apply on the purchase price of said hay.' On this sale plaintiff claimed $900, less the $10 paid. The evidence shows that after the defendant had hauled away 5 of the 50 1/2 tons of hay mentioned in the first cause of action, and after he had baled 25 tons of the hay mentioned in the second cause of action, all of the hay then remaining on the plaintiff's farm, including the 25 tons baled, was destroyed by fire. The controlling question on this appeal, therefore, is whether title had passed to the defendant. The trial court found that title to the 50 1/2 tons included in the first sale had passed to the defendant; that the title to the 25 tons which he had taken into his possession and baled had also passed to him, and entered judgment accordingly. The defendant contends that he had not acquired title to any of the hay except the five tons removed, of the value of $47.50, and that he is entitled to a return of $212.50 of his advance payments, for which he demanded judgment. The plaintiff contends that title to all of the hay had passed; that he was entitled to recover for 50 1/2 tons at $9.50 per ton on the first cause of action, and for 90 tons at $10 per ton on the second cause of action. The question as to when the title to personal property passes to a vendee under and in pursuance of a contract of sale depends upon the intention of the parties. Whether the contract is executed or executory must be determined by its terms and purposes, the nature, conditions, and situation of the property sold, and the circumstances surrounding the parties. As to the first sale, there can be no serious question as to the intention of the parties. One certain stack of hay was selected and distinguished from others then on the plaintiff's land. The quantity of hay it contained was agreed upon at 50 1/2 tons. The purchase price was...