Lumsden v. Roth

• Decision Date: 22 December 1955
• Citation: 138 Cal.App.2d 172,291 P.2d 88
• Court: California Court of Appeals Court of Appeals
• Parties: Mace LUMSDEN, Plaintiff and Respondent, v. W. E. ROTH, Sam Neilsen and Howard Neilsen, Defendants and Appellants. Civ. 8716.

Page 88

291 P.2d 88

138 Cal.App.2d 172

Mace LUMSDEN, Plaintiff and Respondent, v. W. E. ROTH, Sam Neilsen and Howard Neilsen, Defendants and Appellants.

Civ. 8716.

District Court of Appeal, Third District, California.

Dec. 22, 1955.

H. D. Jerrett, Sacramento, for appellant.

Hughes & Maul, Placerville, for respondent.

VAN DYKE, Presiding Justice.

Plaintiff-respondent brought action to recover money alleged to be due for the sale of timber. The cause was tried by the court without a jury and from a judgment in favor of plaintiff defendants have appealed.

The trial court found the following: On July 22, 1953, respondent entered into a written contract with appellant Roth for the sale to him of certain timber standing on respondent's land, marked for cutting and which was by Roth to be cut and removed from the land. The purchase price was $15 per thousand board feet according to the 'Scribner Decimal C scale'. On October 7th following respondent and Roth executed a second agreement which extended the time given Roth for cutting and removing the timber, but this agreement also provided that payment should be made for all trees taken and also for those left standing on the land 'down to an eight inch top'. There was also a provision for attorneys' fees if respondent instituted suit to enforce the provisions of either contract. Appellant Roth assigned his rights under the agreements to appellants Sam and Howard Neilsen and by reason of the assignment the assignees became obligated to perform the terms of the agreements. There was cut a total of 197,244 board feet. Appellants paid for 125,360 feet thereof at the contract price and this left unpaid the sum of $1,078.26. $300 was a reasonble amount for attorneys' fees. Judgment was given according to these findings.

Appellants attack the findings that Roth assigned the contracts and that thereby the Neilsens became obligated to respondent. The evidence as to assignment is sufficient. Roth testified that he obtained the contract in order to get a job cutting and bucking the timber after the Neilsens had gone with him to the land and inspected the same and had agreed with him to pay respondent for the timber. He said he would not have taken the contracts unless the Neilsens agreed to this and, as he put it, he 'gave' both contracts to the Neilsens. It was also shown that all of the payments to respondent were made directly by the Neilsens; that the Neilsens took all of the timber cut; that it was their scaler who scaled the logs delivered; that the payments they made were made according to his scale, a part of their defense being that according to their scaler's computations they had fully paid respondent. The foregoing is sufficient to uphold the court's findings of an assignment and the further finding that by the assignments the Neilsens became obligated to respondent. While 'the mere acceptance of an assignment of rights under a bilateral contract under which a reciprocal burden has been undertaken by the assignor does not impose any duty of affirmative performance upon the assignee personally' yet 'the assignee may of course agree to assume the burden as a consideration of the assignment. In determining whether there has been such an assumption by an assignee, the intention of the parties is determined by due consideration of their words, their acts, and the subject matter of the contract.' 5 Cal.Jur.2d 'Assignments', Sec. 60. '[W]here, after the assignment is made, the executory provisions of the contract are fully performed, the benefit inuring solely to the assignee, and where by his actions he holds himself out as personally liable and recognizes the original contract as binding upon him, he is liable to the other party equally with the assignor.' Robinson v. Rispin, 33 Cal.App. 536, 541, 165 P. 979, 982; see, also, Jones v. Allert, 161 Cal. 234, 118 P. 794; Armstrong Co. v. Shell Company of California, 98 Cal.App. 769, 775-776, 277 P. 887; Wilson v. Beazley, 186 Cal. 437, 444, 199 P. 772.

Appellants contend that the evidence is insufficient to support the findings as to the amount of timber for which they became indebted to respondent at the contract price. The quantity of board feet taken was to be computed by the Scribner Decimal...