Sanger Lumber Co. v. Western Lumber Exchange

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: GILBERT, HUNT, and RUDKIN, Circuit
• Citation: Sanger Lumber Co. v. Western Lumber Exchange, 11 F.2d 489 (9th Cir. 1926)
• Decision Date: 11 March 1926
• Docket Number: No. 4702.,4702.
• Parties: SANGER LUMBER CO. v. WESTERN LUMBER EXCHANGE.

11 F.2d 489 (1926)

SANGER LUMBER CO. v. WESTERN LUMBER EXCHANGE.

No. 4702.

Circuit Court of Appeals, Ninth Circuit.

March 11, 1926.

O. C. Moore, of Spokane, Wash., for plaintiff in error.

Arthur W. Davis and D. B. Heil, both of Spokane, Wash., for defendant in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge.

In November, 1919, the plaintiff and defendant herein entered into a written contract for the manufacture and sale of lumber; the plaintiff agreeing to manufacture and ship, and the defendant agreeing to sell the lumber for a commission of $2 per thousand, and to make certain advances to aid the plaintiff in its logging and manufacturing operations. Thereafter the plaintiff commenced an action against the defendant in the superior court of Spokane county, state of Washington, to recover damages for a breach of this contract. The defendant in that action, among other defenses, interposed a counterclaim for moneys advanced to the plaintiff under the contract. The trial court denied any relief to the plaintiff, but awarded judgment in favor of the defendant on its counterclaim in approximately the sum of $16,000. An appeal from this judgment was prosecuted to the Supreme Court of the state, and the judgment was there affirmed in so far as it denied any relief to the plaintiff, but reversed as to the counterclaim; the court holding that the contract between the parties was one of agency and that there had been no breach thereof. Sanger Lumber Co. v. Western Lumber Exch., 212 P. 580, 123 Wash. 418. In the meantime the defendant had caused an execution to issue on the judgment of the superior court, and the sheriff sold personal property belonging to the plaintiff thereunder of the value of $11,646. The defendant in the action became the purchaser at the sale for the sum of $4,250, but nothing was paid by the purchaser on account of the purchase price, except to give the sheriff a receipt for the amount of the bid. After the reversal of the judgment the plaintiff in the action applied to the superior court for an execution or writ of restitution, under section 1742 of the Rem. 1915 Codes and Statutes of Washington, which provides as follows:

"If by a decision of the Supreme Court the appellant becomes entitled to a restoration of any part of the money or property that was taken from him by means of the judgment or order appealed from, either the Supreme Court or the court below may direct an execution or writ of restitution to issue for the purpose of restoring to the appellant his property, or the value thereof. But property acquired by a purchaser in good faith, under a judgment subsequently reversed, shall not be affected by such reversal."

The application for an execution or writ of restitution was refused, and in lieu thereof the court ordered and directed the defendant to pay into the registry of the court the sum of $9,045, with interest thereon at the rate of 6 per cent. per annum from February 23, 1922, the money so paid to be held by the clerk until the final determination of any such action as the plaintiff might institute against the defendant for the determination of the differences between them arising out of the contract upon which the litigation was based, and if no such action was commenced within 60 days the money so paid should be returned to the defendant. From this decision both parties appealed to the Supreme Court. The judgment was reversed on the appeal of the defendant, with directions to allow the defendant to retain the proceeds of the sale to be applied by it on the advances made under the contract. Sanger Lumber Co. v. Western Lumber Exch., 222 P. 609, 128 Wash. 335.

Between the time of the entry of the original judgment in the superior court and the reversal by the Supreme Court, the defendant commenced an action on the judgment in a state court of Idaho and recovered a judgment thereon by default. Execution issued on the Idaho judgment and pursuant thereto the sheriff sold personal property belonging to the plaintiff of the value of $1,182.95. This property was also bid in by the defendant for the sum of $800, and nothing was paid on account thereof by the purchaser except to give a receipt as in the case of the former sale. The present action was then commenced in the court below to recover the value of the lumber sold under the two executions. The complaint contained two causes of action; the first based on the sale under the execution issued on the Washington judgment, and the second on the sale under the execution issued on the Idaho judgment.

One of the defenses interposed to...