McGowin Lumber & Export Co. v. McDonald Lumber Co.

• Decision Date: 05 February 1914
• Citation: 64 So. 787,186 Ala. 580
• Court: Alabama Supreme Court
• Parties: McGOWIN LUMBER & EXPORT CO. v. McDONALD LUMBER CO.

64 So. 787

186 Ala. 580

McGOWIN LUMBER & EXPORT CO. v. McDONALD LUMBER CO.

Supreme Court of Alabama

February 5, 1914

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Attachment by the McDonald Lumber Company against George B. Cleveland in which the McGowin Lumber & Export Company intervened. From a judgment for plaintiff, the intervener appeals. Reversed and remanded.

Stevens McCorvey & Dean, of Mobile, for appellant.

Gregory L. & H.T. Smith, of Mobile, for appellee.

SAYRE J.

Cleveland was engaged in the manufacture of lumber at a plant he had rented from the McDonald Lumber Company. The landlord commenced a suit by attachment, claiming a lien under the statute for rent in arrear, and sought to enforce its claim by a levy upon two piles of flooring which had been manufactured and assembled upon the premises occupied by defendant. The McGowin Lumber Company interposed a claim, and at the end of a trial of the right of property the court gave the general charge for plaintiff, whereupon claimant appealed.

The first question presented is whether, apart from the question of waiver or estoppel to be later considered, defendant had so disposed of the property to appellant as to defeat plaintiff's right to a lien. It is a circumstance to be considered that the lumber had not been removed from the premises, but we do not think that circumstance conclusive. It was one of the intendments of the contract between plaintiff and defendant, lessor and lessee, that the latter might dispose of the product of the plant in the usual course of trade free from any lien the former might claim as landlord under the statute, and that the purchaser might remove his purchase. Otherwise the lessee could hardly have found buyers or the means of carrying on his business. We are not so well versed in all the usages of the lumber trade as to be able to say, as matter of law and contrary to appellant's contention, that a sale of sawn lumber under the circumstances shown was not in the usual course of the trade. There was, however, a condition of the original contract of sale between defendant and claimant which is conclusive of the proposition that title to the lumber had not passed to claimant under that contract. The contract did not relate to any particular lumber, but stipulated for the sale and purchase, at an agreed price per thousand feet, of lumber of a certain grade and character not yet manufactured and which, when manufactured, was to be delivered free on board cars at Mobile. Cleveland had set apart the lumber in suit to fill his contract with claimant, and had collected it in two piles under his planer shed, but had not yet collected enough for that purpose, nor had any part of it been put upon cars. Clearly then there had been no delivery according to the terms of the original contract.

Appellant contends nevertheless that what afterwards passed between the parties to the original contract of sale was effectual to pass title to the lumber in controversy. It says, in short, that the parties to that contract entered into a new agreement. This is what occurred: Cleveland, needing money with which to pay rent, on two occasions made to claimant a statement of the amount and quality of the lumber then collected, and got from claimant sums equal to the full contract price per thousand feet of that much lumber, and claimant then had it insured against loss by fire. On the first occasion Cleveland gave claimant evidence in writing of the transaction as follows:

"Mobile, Alabama, July 1st, 1910.

"Delivered by George B. Cleveland lumber as below to planer sheds McDonald mill for account of McGowin Lumber & Export Company: [here follows a description by tally of two lots of lumber, one containing 14,419 feet and the other 11,542 feet]. Received from McGowin Lumber & Export Company $431.12 as an advance on above lumber July 1st, 1910. Geo. B. Cleveland."

This was shown to have occurred on July 2d, and the amount receipted for included 2 per cent. discount which, under the original contract, claimant was to have for cash on delivery.

On the second occasion Cleveland rendered to claimant a statement as follows:

"Sept. 9th, 19l0.

McGowin Lbr. Co. to Geo. B. Cleveland, Dr.

27,916 ft. 2 1/2 "B. Flg. 1800 .......... $501 70

19,000 ft. 2 1/2 No. 1 C. Flg. 14.00 ..... 266 00 $767 70

July 2. By cash ............... $412 70

Sept. 9. By 60 da. acceptance ... 355 00 $767 70

"Above stock held at McDonald mill for shipment. Geo. B. Cleveland."

On our first consideration of this case, laying, as the court now thinks, too much stress upon the fact that the parties to these transactions referred to the first payment as an advance, and upon the statement that the lumber was held at the mill for shipment, meaning, as we then said, for shipment under the terms of the...