Montesano Lumber & Mfg. Co. v. Portland Iron Works

• Decision Date: 19 October 1915
• Citation: 152 P. 244,78 Or. 53
• Parties: MONTESANO LUMBER & MFG. CO. v. PORTLAND IRON WORKS.
• Court: Oregon Supreme Court

152 P. 244

78 Or. 53

MONTESANO LUMBER & MFG. CO. v. PORTLAND IRON WORKS.

Supreme Court of Oregon

October 19, 1915

Department 2.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

Action by the Montesano Lumber & Manufacturing Company against the Portland Iron Works. Judgment for plaintiff, and defendant appeals. Action dismissed.

This was an action for damages begun in the circuit court of Multnomah county upon a complaint, the material portions of which, after setting up the fact that the plaintiff is a corporation organized and existing under the laws of Washington, and that defendant is an Oregon corporation, may be stated as follows:

"That at all of the times herein mentioned the said plaintiff has been and it now is the owner of a certain sawmill and sawmill site, hereinafter more particularly mentioned and described, and located in the county of Chehalis and state of Washington, and immediately to the south of the city of Montesano, in said county, and that on the 18th day of May 1911, and prior thereto, there was located on the said premises a sawmill, with sheds and other buildings, and with various machinery incidental to the operation of a sawmill, and on the date last above mentioned the said plaintiff made and entered into a contract and lease with J. W. Sumrall, A. B. Crosier, and A. K. Foss, wherein and whereby the said plaintiff did lease and let unto the said Sumrall, Crosier, and Foss the said premises for a period of three years, and under the terms of the said instrument the said lessees agreed to purchase and install on the said premises certain valuable machinery, tools, implements, and appliances therein particularly mentioned, and that the said machinery, etc., when so established, should be and become a part of the said realty and a part of the said sawmill and the property of the said plaintiff; and a copy of which said contract and lease is hereunto attached marked Exhibit A and made a part hereof; that very shortly after the execution of the said lease, the said lessees, by and with the consent of the said plaintiff, sold and assigned said lease to the Montesano Mill Company, a corporation under the laws of the state of Washington."

In paragraph 3 it is asserted that:

The Montesano Mill Company, which for the purpose of avoiding confusion of names we will hereinafter style the tenant "for the purpose of complying with the terms and provisions of said lease, * * * purchased of defendant certain machinery, tools, implements, and appliances mentioned and described in the said lease [here follows a detailed list of the machinery, being identical with that which by the terms of its lease the tenant was obligated to place in the mill], all of which were of great value that during the late spring or early summer of 1911 the said machinery, tools, and implements and appliances were by the said defendant sold and delivered to the said Montesano Mill Company, and the same was thereafter by the said company duly installed in the said mill and became a part of the said mill and mill plant and affixed and attached thereto."

Paragraph 4 alleges a forfeiture of the lease.

Paragraph 5 is as follows:

"That on or about the ______ day of ______, 1913, the said defendant, acting by and through its officers, agents, and employés, did unlawfully and wrongfully, and against the wishes and protests of the said plaintiff, enter in and upon the aforesaid mill premises, and did unlawfully, and against the wishes and protests of the said plaintiff, tear down and dismember the said sawmill, and took therefrom the machinery, tools, implements, and appliances which it, the said defendant, had theretofore sold and delivered to the said Montesano Mill Company, and which the last-named company had long theretofore had installed in said mill and which machinery, tools, implements, and appliances were at the time of the unlawful action of the said defendant, necessary for the operation of such mill, and the said defendant after having dismantled the said mill and torn and taken therefrom a large amount of the machinery, tools, implements, and appliances, did take away to places to the plaintiff unknown all such machinery, tools, implements, and appliances, all of which was done by the said defendant wrongfully and unlawfully and against the express wishes and protests of the said plaintiff."

The sixth paragraph states:

"That by the unlawful and wrongful action of the said defendant the said sawmill and sawmill plant of the plaintiff was made useless and worthless, and it has been impossible to operate the said sawmill because of the action of the said defendant, and the machinery, tools, implements, and appliances which the said defendant left in and about the said mill were useless and practically without value, and that by the wrongful and unlawful action of the said defendant as aforesaid the said plaintiff has been damaged in the sum of $10,000."

Defendant answered, admitting its corporate existence and the ownership by plaintiff of the sawmill and site at Montesano, and denied every other allegation of the complaint. By way of further defense it alleged that in the months of May and June, 1911, it agreed to sell to the tenant the property described in the complaint by a conditional bill of sale. The substance of the conditional bill of sale was that the defendant should retain the ownership of the machinery until paid for, and it is in the usual form of such instruments. The answer alleges that the tenant has never paid for the machinery so delivered to it; that defendant did not have any notice or knowledge of the terms of the lease between plaintiff and its tenants until long after the conditional bill of sale was executed; that the conditional bill of sale recited that the tenant was a corporation residing at the city of Montesano, county of Chehalis, and state of Washington; that the principal place of business of plaintiff is in Montesano, Wash.; that plaintiff did not enjoin nor attempt to prevent defendant from running said property; that the same was never in possession of plaintiff, and was removed with its consent; that the tenant ordered to the mill in machinery and other improvements property which cost it more than $18,000. The plaintiff replied to the new matter in the answer by admitting that defendant, at or about the date mentioned in the complaint, did enter into some kind of a contract for the sale of certain sawmill machinery; that said contract was recorded in the office of the county auditor of Chehalis County, Wash.; that such machinery was placed in the mill; and that it constituted a part or all of the machinery mentioned in the alleged conditional sale contract. The following allegations and denials then follow:

"That at the time of the giving of the lease mentioned in the complaint herein the said sawmill plant had in it a large amount of regularly installed machinery ready and prepared for operation; that when the said Montesano Mill Company undertook to install the new machinery provided for in the said lease and particularly the machinery removed by the defendant, the former machinery in the mill was readjusted parts of it removed, thrown aside, and torn to pieces, in order to install and put in operation such new machinery; that the said Montesano Mill Company, under and by virtue of the provisions of the said lease, and for the purpose of complying with the terms thereof, obtained from the said defendant the machinery, tools, implements, and appliances mentioned and described in the complaint herein, and the same were installed in the plaintiff's said mill and mill premises and became a part of the fixed and stationary property of the said mill and mill property; that under and by virtue of the terms of the said lease, when the said machinery, etc., was installed, it became and remained the property of the said plaintiff; that under and by virtue of section 3679 of volume 2, Remington & Ballinger's Annotated Codes and Statutes of the State of Washington, being a part of the statutes and laws of the state of Washington, it is provided, among other things, that persons desiring to form a corporation under the laws of the state of Washington shall make, execute, and acknowledge, in triplicate, written articles of incorporation, one copy of which shall be filed with the secretary of state of Washington, another copy of which shall be filed with the county auditor of the county in which the principal place of business of the corporation is intended to be located, and the third copy to remain in the possession of the corporation, and which said statute further provides that the articles of incorporation shall state, among other things, 'the name of the city, town, or locality and county in which the principal place of business of the company is to be located'; that the articles of incorporation so executed and filed by the said Montesano Mill Company expressly provided that its principal place of business was the city of Seattle, county of King, and state of Washington; that the only conditional sale contract or any written contract made as alleged in the answer or otherwise between the defendant and the said Montesano Mill Company concerning the sale and purchase of the said machinery was filed with the auditor of Chehalis county, and that no such instrument was at any time within the time provided by the laws of the state of Washington filed or recorded in the office of the auditor of the said King county, which was the principal place of business and residence of the said Montesano Mill Company; that sections 3670 and 3671 of volume 2 of the said Remington & Ballinger's Annotated Codes and Statutes of the State of Washington are with reference to the...