Spratt v. Brown-Petzel Lumber Co.
| Decision Date | 28 November 1922 |
| Parties | SPRATT v. BROWN-PETZEL LUMBER CO. ET AL. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Marion County; G. G. Bingham, Judge.
Action by M. M. Spratt against the Brown-Petzel Lumber Company, a corporation, and others. Judgment for plaintiff, and defendant Brown-Petzel Lumber Company appeals. Reversed, and remanded, with directions to dismiss complaint.
Smith & Shields, of Salem, Virgil H. Massey, of Woodburn, and v. Lyle McCroskey, of Stayton, for appellant.
V. A Goode, of Stayton, and W. C. Winslow, of Salem, for respondent.
Plaintiff seeks to foreclose three liens upon logs belonging to defendant Brown-Petzel Lumber Company. Plaintiff and his assignors, J. W. Krise and R. E. Goodell, performed labor upon the logs at the instance of the defendants L. J. Breard and A. M. Krise. This labor was performed in connection with the making of a drive of the logs in the Santiam river.
The Brown-Petzel Lumber Company operates a sawmill on the Santiam river at Stayton, Ore. On June 4, 1920, it entered into a written contract with said defendants L. J. Breard and A. M Krise, wherein it was understood and agreed that Breard and Krise should drive the logs and deliver them to the defendant company at its millpond for which the defendant company agreed to pay $3 per thousand feet board measurement. There was no stipulation as to the time in which the work should be completed, but it was understood between the parties that the logs were to be delivered in time for the operation of the mill the following winter. At the time the contract was entered into there was not sufficient water in the river to make the drive. Later in the month of June the water rose and Breard and Krise commenced work in performance of the contract, and continued work for a period of a week or ten days, when the water in the river again became too low, which compelled them to discontinue the work. They made no actual delivery of any of the logs. Early in September the water again rose, at which time the defendant company notified Breard and Krise that the company itself would take charge of the drive, and at that time gave them explicit directions to discontinue all work under the contract, and not to do anything further in connection with the logs.
After receiving this notice, and notwithstanding the explicit directions of the defendant company, Breard and Krise employed the plaintiff as a foreman to take charge of the drive, and employed others, including J. W. Krise, one of plaintiff's assignors. They commenced work on September 10, and remained at work until September 13, when the defendant company, through its manager, notified the plaintiff and his assignor, J. W. Krise, as well as the other employees then at work, that the defendant company had taken over the work from Breard and Krise, and would not be responsible nor pay for any work done by them thereafter. Shortly after receiving said notice, all of the employees of Breard and Krise, except plaintiff and his assignor, J. W. Krise, ceased work, and were paid by the defendant company.
The plaintiff testified that before commencing work he had been informed that the defendant company had forbidden Breard and Krise to do anything further under the contract. He also testified that before commencing work he tried to obtain a contract to drive said logs in behalf of himself and the defendant Krise, but was unable to obtain such contract. Goodell, plaintiff's other assignor, did not commence work until September 17th, but he testified that before commencing work he had been informed that the work had been taken away from Breard and Krise.
According to the time book, Plaintiff's Exhibit 1, kept by the defendant Krise, plaintiff commenced work on September 10, and ceased work on October 8. He claims a lien for 24 1/2 days' work at $15 per day. J. W. Krise, one of said assignors, worked on September 10 and 11, then ceased working until September 20, after which he worked until October 8, 1920. He claimed a lien for 12 1/2 days' work at $8 per day. Goodell, the other assignor of plaintiff, commenced work on September 17, and ceased work on Ocober 8, and claimed a lien for 17 1/2 days' work at $8 per day.
Whether in forbidding Breard and Krise to do any further work under the contract the defendant company breached its contract is not a question that can be determined in this suit. If the defendant company did breach its contract, Breard and Krise, by an action at law, can recover the damages resulting from such breach. The question we are now called upon to decide is this: Can the plaintiff enforce, as against the defendant company's logs, a lien for the labor of himself and his assignors under employment of Breard and Krise after the defendant company had expressly directed Breard and Krise to discontinue work under the contract and had given notice thereof to plaintiff and to each of his assignors? The determination of this question does not depend in any way upon whether the defendant company was acting within its legal rights in ordering Breard and Krise to discontinue work under the contract. The contract at the time was executory on both sides, and it was within the power of the defendant company to forbid further performance of the contract by Breard and Krise. After the defendant company directed Breard and Krise to discontinue all work under the contract Breard and Krise could recover the damages sustained by an action at law, if such action upon the part of the company was in violation of the contract, but they could not continue the work under the contract and recover the contract price for such work.
In Herring-Marvin Co. v. Smith, 43 Or. 315, 72 P. 704, this court, speaking through Mr. Justice Wolverton, said:
Again, in Dougan Co. v. Klamath County, 99 Or. 436, 460, 193 P. 645, 653, this court, speaking through Mr. Justice Johns, said:
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Kidder v. Nekoma Lumber Co.
...Phillips v. Graves, 139 Or. 336, 349, 9 P.2d 490, 83 A.L.R. 1; McKinley v. Tice, 129 Or. 190, 196, 276 P. 1110; Spratt v. Brown-Petzel Lumber Co., 105 Or. 672, 680, 210 P. 700. At the very threshold of our inquiry we are confronted with a determination of what is the proper rule of construc......