McMillen v. Bancroft, 22773.

• Decision Date: 21 April 1931
• Docket Number: 22773.
• Citation: 162 Wash. 175,298 P. 460
• Parties: McMILLEN et al. v. BANCROFT et al.
• Court: Washington Supreme Court

298 P. 460

162 Wash. 175

McMILLEN et al. v. BANCROFT et al.

No. 22773.

Supreme Court of Washington

April 21, 1931

Department 2.

Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

Action by T. F. McMillen and another against Ellis Bancroft and others. From the judgment, defendants appeal.

Affirmed.

F. W Mansfield and W. P. Bell, both of Everett, for appellants.

S. M Bruce, of Bellingham, and Robert Mulvihill, of Everett, for respondents.

MILLARD, J.

Plaintiffs seek by this action to recover $2,000 paid to defendants on a certain contract, and to recover damages claimed to have resulted from defendants' fraudulent representations which it is alleged induced the plaintiffs to enter into the contract with the defendants. The cause was tried to the court which found that defendants made no false representations inducing the execution of the contract; that the plaintiffs were entitled to recover $2,000, paid by them on the contract, less the value of the timber removed by the plaintiffs at the price specified in the contract; that the plaintiffs abandoned the contract, and that the defendants acquiesced in that abandonment and subsequently disposed of the remaining property to third persons. Judgment was entered accordingly. The defendants have appealed.

On November 24, 1925, the parties herein entered into a written contract reading as follows:

'This agreement, entered into this twenty-fourth day of November Nineteen Hundred and Twenty-five:

'Witnesseth That Ellis Bancroft and Chas. W. Miley, parties of the first part, agree to sell to T. F. McMillan and Paul Barnum, parties of the second part; and parties of the second part agree to purchase from parties of the first part all of the timber now remaining on the East 1/2 and of the N.W. 1/4 and SW 1/4 of the SW 1/4, Sec. 10, Twp. 27 N. Range 2 W. now owned by the parties of the first part together with two sets of disconnected R. R. Logging Trucks and all of the boom sticks and chains now owned by the parties of the first part and now being in Quilcene Bay, there being forty-five (45) or more of these boom sticks; also all of the timber now held under contract by the parties of the first part and owned by the Washington Lumber and Spar Co., of Seattle, Washington located in Sec. 10 and 15, Twp. 27 N. R. 2 W, all in Jefferson County, Washington, on the following terms:

'The parties of the second part agree to pay to the parties of the first part Two Thousand ($2,000.00) Dollars cash and Two Thousand ($2,000.00) Dollars to be paid at the rate of One (.01) Cent per foot on all piling, and one ($1.00) Dollar per M, F. B. M. on all logs removed in addition to the regular stumpage price to be paid by the parties of the second part which shall be three $3.00 Dollars per M for all timber and Three (.03) cents per foot for all piling 100 feet long or longer; and two and one-half (.02 1/2) Cents per foot for all piling and cedar poles under one hundred (100) feet in length removed by parties of the second part, until the two Thousand ($2,000.00) Dollars with interest at the rate of seven (7%) per cent shall be paid, the said Two Thousand ($2,000.00) Dollars being a deposit on stumpage which shall apply at the completion of said agreement when the regular stumpage rate will be in force, said stumpage to be paid as piling and logs are disposed of.

'It is agreed that the parties of the second part shall furnish to the parties of the first part duplicate scale sheets of all timber, piling and poles removed; that the timber owned by the parties of the first part and that owned by the Washington Lumber and Spar Co. shall be kept separate; and that the parties of the second part shall take everything clean that will make either logs or piling.

'The parties of the second part also agree to pay all taxes that shall become due and assessed against the timber owned by the parties of the first part, after the date of this instrument, taxes on land not included.

'The taxes on timber owned by the Washington Lumber and Spar Co., which shall become due after January 1, 1927, shall be paid by these parties of the second part.

'It is further agreed that the parties of the second part shall have four years from the date of this instrument in which to remove said timber; and they shall also have the use of all rights-of-way now held by the parties of the first part for the removal of said timber by paying the yearly rental of thirty ($30.00) Dollars.'

Coincident with the execution of the contract, the respondents paid to the appellants $500, and thereafter paid $1,500 additional. Respondents took possession of the premises, erected a logging camp, and proceeded to log the land. The timber removed consisted of poles, piling, and logs. In January, 1927, the respondents ceased logging operations on the land as they were not permitted to transport their logs over the county roads, and they had no other method of removing the timber from the land. In the spring of 1927, the appellants sold the remaining timber, poles, and piles on the land to other parties who removed the timber.

Appellants contend that the $2,000 paid by respondents was for the purchase of the trucks, boom sticks, and chains referred to in the contract; that the amount paid was solely for the purchase of the personal property mentioned. It clearly appears from the evidence that the...