Reid v. Kier

• Decision Date: 17 October 1944
• Citation: 175 Or. 192,152 P.2d 417
• Parties: REID <I>v.</I> KIER ET AL.
• Court: Oregon Supreme Court

175 Or. 192

152 P.2d 417

REIDv.

KIER ET AL.

Supreme Court of Oregon.

Argued September 26, 1944.

Affirmed October 17, 1944.

Sales

1. The purpose of the Uniform Sales Act was to establish uniformity of usages and customs in trading throughout the United States.

Logs and logging

2. Where contract for sale of standing timber contained buyer's agreement to make certain remittances during removal of timber for application on purchase price and contract granted license to buyer to enter on premises to remove timber but did not contain agreement that buyer would sever the timber at any particular time or at all, the contract did not involve sale of "goods" within Uniform Sales Act, and hence action to recover balance due on purchase price was properly tried as an equitable proceeding and on appeal was triable de novo.

Logs and logging

3. Where contract for sale of standing timber contained defendant's agreement to make certain remittances to plaintiff, during removal of timber, for application on purchase price, by supplemental agreement under which buyers of timber from defendant were to make deductions from amount payable to defendant and remit the same directly to plaintiff, plaintiff became a creditor-beneficiary; the defendant's buyers being the promisors and the defendant being promisee.

Contracts

4. A creditor-beneficiary may maintain an action directly against the promisor upon the promise made by the promisor to the promisee.

Logs and logging

5. Where contract for sale of standing timber contained defendant's agreement to make certain remittances, during removal of timber, to plaintiff for application on purchase price, and by supplemental agreement defendant's buyer was authorized to make deductions from amount payable to defendant and to make remittance directly to plaintiff, both defendant and his buyer were liable to plaintiff for unpaid amount withheld by the buyer from the purchase price of logs delivered to it by defendant.

Release

6. Even though both promisor and promisee are liable to a creditor-beneficiary, there can be but one satisfaction.

Release

7. Where contract for sale of standing timber contained defendant's agreement to make certain remittances, during removal of timber, to plaintiff for application on purchase price, and supplemental agreement required defendant's buyer to make deductions from amount payable to defendant and to make remittance directly to plaintiff, plaintiff's satisfaction of claim against the defendant's buyer discharged defendant from liability by reason of delivery by defendant to such buyer of logs and the withholding of part of purchase price by such buyer.

Release

8. Where contract for sale of standing timber contained defendant's agreement to make certain remittances, during removal of timber, to plaintiff for application on purchase price, and supplemental agreement required defendant's buyer to make deductions from amount payable to defendant and to make remittance directly to plaintiff, and where plaintiff's discharge of defendant's buyer had wrought a material change in relation of buyer to defendant, plaintiff could not successfully contend that there was no such discharge.

                  See 46 Am. Jur. 198
                  17 C.J.S., Contracts, § 519
                

Before BAILEY, Chief Justice, and ROSSMAN, KELLY, LUSK and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

WALTER L. TOOZE, Judge.

Action at law by Etta Reid against Glen L. Kier and another to recover unpaid balance due upon purchase price of standing timber. From an equitable decree in favor of plaintiff, in which inter alia plaintiff was awarded judgment against defendant Brown in the sum of $1,704.33 with accrued and accruing interest thereon, plaintiff appeals.

MODIFIED.

J.F. Boothe, of Portland, for appellant.

W.C. Winslow, of Salem, for respondents.

KELLY, J.

On May 29, 1939, the parties hereto entered into a written agreement, wherein plaintiff is termed the first party and defendants are designated as the second party, and by virtue of which contract plaintiff agreed to sell and defendants agreed to purchase timber on the northwest quarter of section 16 in township 7 south of range 6 west in Polk County, Oregon, for a consideration of $7,500.00.

The contract contains a provision with reference to the creation by defendants of a sinking fund derived from the proceeds of the sale of timber to be removed by defendants from another tract designated as the "Ralph Williams ownership". This provision of the contract is not involved here further than to disclose the source of payments made to plaintiff by defendants of twenty-five cents per thousand feet of timber taken from said "Ralph Williams ownership".

By said contract, defendants agreed to pay plaintiff $2.00 per thousand log scale on all logs and one cent per lineal foot for all piling removed from said premises and that said sum should be remitted to the United States National Bank at Portland, Oregon, for credit to plaintiff to apply upon said purchase price not later than the tenth of each month for the previous month's log and piling removal, and that such remittance should continue until the entire purchase price had been paid in full.

By the terms of paragraph four of said contract, termed section 4 thereof in defendants' answer, defendants also agreed that all of the logs purchased by them from said northwest quarter of section 16 should be sold to buyers with good credit rating and that defendants would supply plaintiff with a certified copy of scale of each month's delivery at the time of each remittance.

The concluding six paragraphs of said agreement are as follows:

"8. It is agreed that first party, by the sale to second party of the timber conveyed by this sales contract, does not in any way guarantee the quality or cruise of said timber, and that the consideration of Seventy Five Hundred Dollars ($7500.00), as named herein, is for said timber as is.

9. It is further agreed by second party that time of payment and strict performance of this agreement are the essence of this agreement and that the failure of second party to comply with the same will at the option of first party make any unpaid balance of purchase price as may at such time exist, become due and payable, and also that they will not later than December 31, 1942, pay in full said purchase price regardless of whether said timber has been removed by them or not, providing however, if such delinquency shall exist as the result of causes over which second party has no control, that an extension of final payment shall be granted for the period of such delay, providing it shall not exceed six months as a whole.

10. It is agreed by second party that first party or her representative shall, at all times during the performance of this agreement, have the right to audit all or such part of the log and piling sales footage as she may elect, in order that she may verify such reports as second party may make in compliance with the terms of this purchase agreement.

11. It is understood by second party that they will not assign, transfer or hypothecate this contract without the written consent of the first party.

12. Second party further agrees that they will pay all state and county taxes now assessed against the timber only on this property that will be due and payable after June 15, 1939, with the understanding that first party will pay all taxes that have been assessed and are unpaid up to and including June 15, 1939. Second party further agrees that all taxes that may hereafter be assessed on said timber will be paid by them until they have removed all timber from said described land.

13. It is understood that partial payments made by the second party shall not be construed as a waiver of the time of payments, terms and conditions as the essence of this agreement, and furthermore, the terms of this agreement cannot be changed unless in writing signed by the parties hereto."

On July 26, 1943, plaintiff filed her complaint here to recover the unpaid balance of the purchase price of said timber alleged by plaintiff to be $3,064.26 and taxes thereon in the sum of $246.34.

On August 14, 1943, an order was made adding Kenwood Lumber Company, a corporation, and J.D. and W.W. Harvey as additional defendants. Before trial, this order was rescinded and set aside.

Only defendant Brown answered plaintiff's complaint. The record does not disclose how the case was disposed of with respect to defendant Kier. In his answer defendant Brown admits the execution of said contract, alleges that shortly after the execution thereof he took over the whole interest comprising the subject matter of said contract.

Paragraphs II, V and VI of said defendant's answer are not denied, and are as follows:

"II

That defendants J.D. Harvey and W.W. Harvey were the chief stockholders and operators of the Kenwood Lumber Company, hereinafter more particularly referred to."

"V

That shortly after the execution of the contract this defendant entered upon the performance of said contract and, in order to obviate any difficulty with plaintiff over the provision of section four of said contract, made the following working arrangement with plaintiff, namely, that he would sell logs to different mills and buyers and that said mills and buyers would deduct from the purchase price which they would agree to pay to this defendant the sum of $2 per thousand and remit and pay the same directly to the plaintiff by paying the same, pursuant to the terms of said contract, to the U.S. National Bank at Portland, Oregon. That during the entire performance of said contract said arrangement has been carried out and said remittances and copies of scales have been furnished by said purchasers of said logs, except as hereinafter specifically referred to.

VI

That under and pursuant to said contract and said arrangement for logging above set forth, there has been paid by said buyers of said logs to plai...