Tingley v. Bellingham Bay Boom Co.

• Decision Date: 02 February 1893
• Citation: 32 P. 737,5 Wash. 644
• Parties: TINGLEY v. BELLINGHAM BAY BOOM CO.
• Court: Washington Supreme Court

32 P. 737

5 Wash. 644

TINGLEY v. BELLINGHAM BAY BOOM CO.

Supreme Court of Washington

February 2, 1893

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by F. C. Tingley against the Bellingham Bay Boom Company for alleged breach of contract. Plaintiff was nonsuited at the trial, and he appeals. Reversed.

Harris Black & Leaming, for appellant.

Thos G. Newman, for respondent.

STILES J.

We are not advised upon what ground the court below sustained the defendant's motion for a nonsuit, but, whatever may have been the ground, we think the facts in this case, as they appear from the testimony, should have been submitted to a jury under proper instructions. The complaint contains two causes of action, which were improperly united but no objection was made to the complaint upon that ground, and no criticism can now be made of the course of the plaintiff in making the improper joinder. The defendant was a corporation organized in pursuance of the act of March 17, 1890, (Laws, p. 470,) entitled "An act to declare and regulate the powers, rights, and duties of corporations organized to build booms, and to catch logs and timber products therein." It appears that the boom of the defendant was built at the mouth of the Nooksack river, in Whatcom county. At a point higher up the river, a rival concern, known as the "Nooksack River Boom Company," had constructed another boom. The defendant, in order to fully secure the patronage of certain loggers up the Nooksack river, procured from several of them, on the 24th day of June 1890, a written document, which in the case has been termed a "contract." The plaintiff was one of the signers, and the instrument took the form of a mutual agreement. The preamble of this document recites that the signers are in the business of driving logs down the Nooksack river; that there are no proper facilities at the present time for cutting and taking care of logs at the mouth of the river; and that the defendant proposes to erect a boom at the mouth of the said river for the purpose of catching, handling, and securing logs; and then proceeds as follows: "Now, therefore, in order to encourage and assist the construction of the said boom by the said company, and to ensure the safe and economical handling of such logs as we may run down the Nooksack river, we, the undersigned, hereby undertake and agree that so soon as the said Bellingham Bay Boom Company may construct a boom, and notify us that it is ready to receive and take care of our logs, we will consign to said company all of the logs which we may put into the Nooksack river for the purpose of being run into Bellingham bay; and it is further agreed upon the part of the said boom company that it will, as soon as practicable, construct said boom, receive and take care of the said logs, in all manner complying with the laws of the state of Washington in that respect, and that it will make such boomage charges to the person to this agreement as is common and customary with other loggers consigning logs to booms, and no other or further charges." This instrument was not signed by the defendant, or by any person upon its behalf, but it was delivered to one who claimed to act as and who certainly was in fact the authorized manager of the defendant, and it was by him transmitted to his company, and it was undoubtedly acted upon by all parties for many months. A great deal of force was expended by the plaintiff in proving that this paper was the contract of the defendant, and by the defendant in endeavoring to evade its effect as a contract, on account of the failure of its officers to affix the signature of the company to it; but it seems to us that it was wholly immaterial whether this instrument was signed by the defendant or not. Let it be remembered that this was a statutory boom corporation, whose works were at the mouth of the Nooksack river. Section 4 of the act under which this corporation was organized provides as follows: "After such work shall have been constructed, such corporation shall catch, hold, and assort the logs and timber products of all persons requesting such service upon the same terms and without discrimination: *** Provided, that it shall be the duty of any corporation operating a boom at the mouth of any river to catch and hold, assort, boom, and raft all logs and timber products, except such as may be already in charge of its owner or his agents, without request of the owner or owners, and shall have the right to charge and collect tolls not to exceed seventy-five cents per thousand feet for such service." Under this statute it was immaterial whether this defendant had any contract or request, either oral or written. Any logs coming down the Nooksack river, not in charge of their owner or his agents, it was bound to catch and hold, raft and boom, as the law required. Failing to do this, it was liable to the penalties prescribed by sections 7 and 8 of the act.

Now, it was alleged in this case that large quantities of plaintiff's logs were allowed by this company to escape to the open waters of Puget sound, and to be there lost; and the uncontradicted proof is that some logs belonging to the plaintiff did escape and become scattered and lost. The proofs were not altogether satisfactory as to whether these logs that escaped actually passed the boom of the defendant or not. Some of them came down the river, and were stopped by the arbitrary action of the Nooksack River Boom Company, (the upper company,) and held under a claim for boomage for a time; whether rightfully or wrongfully is no matter. It seemed to be insinuated by the cross-examination of witnesses that it was through the action of the Nooksack Company that these logs escaped to the open sea through a slough; but it remains unexplained, so far as we are able to ascertain from the case, why the escaped logs must not have passed the boom of the defendant on their way down the river to the waters of the Sound. It may be that there is some explanation not apparent in the case which the defendant may be able to offer upon a retrial, but the main point must stand that, if these logs passed the waters assumed to be controlled by the defendant for the purpose of boomage, it was its duty, both to the plaintiff and to the state, which is interested in not having the navigation of its waters made dangerous by floating logs, to catch them as they passed, and, to save itself from responsibility if they had passed its boom, to pursue, catch, and return them. The plaintiff sought to prove a great many elements of damage which were rightly excluded. He claimed that, by reason of defendant's permitting his logs to escape and be lost, he not only lost their sale, but ran his logging camp without profit, and was finally compelled to shut it down, to the injury of his financial credit, etc., and he appeals to Lumber Co. v. Cole, 1...