Sanger Lumber Co. v. Western Lumber Exchange

• Decision Date: 31 January 1924
• Docket Number: 18217.
• Citation: 222 P. 609,128 Wash. 335
• Court: Washington Supreme Court
• Parties: SANGER LUMBER CO. v. WESTERN LUMBER EXCH.

222 P. 609

128 Wash. 335

SANGER LUMBER CO. v. WESTERN LUMBER EXCH.

No. 18217.

Supreme Court of Washington

January 31, 1924

Department 1.

Appeal from Superior Court, Spokane County; Oswald, Judge.

Action by the Sanger Lumber Company against the Western Lumber Exchange, a corporation. A judgment for defendant was reversed on appeal. From judgment rendered, in plaintiff's proceeding by writ of restitution, both parties appeal. Reversed on defendant's appeal, with directions.

O. C Moore, of Spokane, for plaintiff.

John A Peacock and Davis, Heil & Davis, all of Spokane, for defendant.

MAIN C.J.

This action is the aftermath of a decision of this court in Sanger Lumber Co. v. Western Lumber Exchange, 123 Wash. 418, 212 P. 580. Briefly stated, the facts were: In November, 1919, the plaintiff and defendant (and by those appellations we will continue to call them, as both parties are appealing here) entered into a written contract for the manufacture of lumber by the plaintiff and sale by the defendant. The defendant was to make certain advances to the plaintiff to assist in the plaintiff's logging and sawmill operations. As interpreted in the prior decision, this contract was one creating the relationship of principal and agent between the plaintiff and the defendant by which the defendant as agent was to sell the lumber manufactured by the plaintiff at a price to be agreed upon and to retain $2 per 1,000 feet for its service in making the sale. The plaintiff claims that out of these sales the defendant had no right to retain any amount other than its commission, but was compelled to account to the plaintiff for the entire sum received by it, less the commission, and relies upon a statement in 123 Wash., which it contends so interprets the contract. On the other hand, the defendant claims that the contract gave it the right to retain out of the amounts received by it from purchasers charges made on account of advancements, and calls attention to another paragraph in the same opinion to that effect. Whether the contract expressly allowed the defendant to deduct from the amount received from purchasers charges on account of its advancements to the plaintiff, or was entirely silent on this subject, is immaterial, for in the absence of a provision to the contrary the law is settled that where an agent has made advancements for his principal he has a right to reimburse himself for all such advancements from funds belonging to his principal which are in his hands. Mechem on Agency (1st Ed.) § 652. So that we may take it as settled under the contract that the defendant had the right to retain any of the funds arising from the sales which were necessary to reimburse the defendant for advancements which it had made.

The case in 123 Wash, was one against the defendant, claiming that the contract had been breached and asking for damages, and to that action the defendant counterclaimed, setting up that there was a balance due to it from the plaintiff of $16,000 for advancements made under the contract, the advancements above referred to. Upon the trial of that case judgment was entered dismissing the plaintiff's cause of action and giving the defendant a judgment against the plaintiff for $16,500 on account of the advancements. The plaintiff appealed, and on February 3 1923, this court affirmed the judgment in so far as it denied relief to the plaintiff, and reversed it in so far as it awarded any judgment to the defendant, holding that there had been no breach of the contract between the parties, and saying:

'* * * Neither of the parties to this action has been at fault under the contract, and the result of that conclusion must be that the contract stands just as it would have stood had not this suit been brought. * * * This is one of those cases where the parties should be left in identically the same position as they would have been in had this litigation not occurred.'

The plaintiff had furnished to supersedeas bond on that appeal, and after the judgment had been entered in the trial court the defendant procured execution to be regularly issued on the judgment in its favor directed to the sheriff of Whitman county, who, in pursuance of the execution, levied upon certain lumber situated at Tekoa, which had been manufactured by the plaintiff, and which lay piled along the railroad, and on February 23, 1922, held an execution sale at which the defendant purchased the lumber. Immediately thereafter the defendant procured buyers for the lumber which it had secured on the execution, and in May and June, 1922, sold all of the lumber at the highest price obtainable on the market.

After the remittitur had gone down, following the decision in 123 Wash., the plaintiff proceeded to secure a writ of restitution to have returned to it its property or the value thereof taken under execution, by virtue of section 1742, Rem. Comp. Stat., providing 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 hearing on the plaintiff's application resulted in the court making the following findings, conclusions, and judgment:

Findings.

'I. That pursuant to the execution heretofore issued in this cause, at the instance of defendant, the sheriff of Whitman county offered for sale and sold at public auction at Tekoa, Wash., on the 23d day of February, 1922, 603,000 feet of lumber of the plaintiff, Sanger Lumber Company, of the reasonable market value, at the time of said sale, of $15 per M, or a total of $9,045.

'II. That at said public sale defendant, Western Lumber Exchange, a corporation, through and in the name of its agent, A. T. Allen, became the purchaser of said lumber though it did not pay or cause to be paid anything whatever of value to said sheriff or to anyone else therefor.

'III. That on the 3d day of February, 1923, the judgment of this court in favor of defendant, Western Lumber Exchange, on which said execution was issued, was reversed, set aside, and held for naught by the Supreme Court of the state of Washington.

'IV. That defendant, Western Lumber Exchange, immediately following said sheriff's sale, took possession of said lumber and thereafter sold, removed, and converted the proceeds thereof to its own use.

'V. That no supersedeas bond

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