Washburn v. Inter-Mountain Mining Co.

• Decision Date: 28 June 1910
• Citation: Washburn v. Inter-Mountain Mining Co., 56 Or. 578, 109 P. 382 (Or. 1910)
• Parties: WASHBURN v. INTER-MOUNTAIN MINING CO. et al.
• Court: Oregon Supreme Court

109 P. 382

56 Or. 578

WASHBURN v. INTER-MOUNTAIN MINING CO. et al.

Supreme Court of Oregon

June 28, 1910

Appeal from Circuit Court, Baker County; William Smith, Judge.

Action by J.H. Washburn against the Inter-Mountain Mining Company and others. Judgment for plaintiff, and defendant J.W. Flack appeals. Affirmed.

This is a suit to foreclose miners' liens. The defendant Inter-Mountain Mining Company was the owner of 14 mining claims in Baker county, Ore. W.L. Vinson, at the time of the acts complained of in the answer of Flack, was its president and manager. Between May, 1908, and June 14, 1909, plaintiff and the 20 other lien claimants mentioned in the complaint under employment of the defendant company, performed labor upon the said mines, as a group, in constructing tunnels and performing other work for the development thereof, in search for gold. Upon the latter date, at suit of C.E. Bond, Robert D. Carter was appointed a receiver for defendant company, and thereupon took possession of the mines. Thereafter on June 23, 1909, the lien claimants filed in the office of the county clerk of Baker county, Ore., notices of their liens upon the mines for such labor, under the provisions of section 5668, B. & C. Comp., as amended by the Laws of 1907 p. 293. Thereafter each of the other lien claimants assigned his claim to plaintiff, who, on July 30, 1909, brought this suit to foreclose the same. The defendant corporation and the receiver made no defense to the suit. Defendant Bond answered, alleging a laborer's lien, which was disallowed by the trial court, and he does not appeal. The defendant Flack answered, and, beside denials, alleges affirmatively that the 20-stamp (quartz) mill, situated upon the mines, is personal property of which he is the owner. He asks that the court adjudge that it is not subject to the liens of plaintiff; and that the receiver be directed to release it to him, his contention being, that on May 2, 1908, he was the owner thereof, it being situated in Malheur county, Ore.; and that on that day he entered into an agreement with W.L Vinson for the sale of it to him in the following words (omitting the preliminary statement and signatures) viz.: "Now, therefore, in consideration of the sum of one thousand dollars ($1,000) in hand paid by the party of the second part to the party of the first part, the receipt whereof is hereby acknowledged and confessed, the said party of the first part has this day sold, assigned and disposed of and by these presents does hereby sell, assign, transfer and set over unto the said party of the second part the said mill consisting of one (1) twenty stamp mill including building and all machinery, dies, tools and appurtenances thereunto belonging, except the dwelling house, blacksmith shop, two ore cars and three hundred feet of rails, upon the following terms and conditions, to wit: First. The said party of the second part hereby promises and agrees to remove said mill, building, machinery, tools and appurtenances unto property owned by him situated near the Rainbow mine, in the county of Baker and state of Oregon, as soon as may be hereafter, and to do all of said work free of charge to the party of the first part. Second. The said party of the second part hereby promises and agrees to pay to the said party of the first part the further sum of nine thousand dollars ($9,000) according to the terms and conditions of one certain promissory note bearing even date herewith, executed by the said party of the second part to the party of the first part as the balance of the purchase price of said mill and machinery, and that until the entire purchase price shall have been paid, the title to the said mill and all machinery hereinbefore described shall be and remain in the party of the first part. Third. Upon the payment to the said party of the first part of the entire purchase price of said property, he hereby promises and agrees to satisfy and release unto the said party of the second part all claim, right and title in and to said mill and machinery. Fourth. It is further understood and mutually agreed by and between the parties hereto that time is of the essence of this contract, and that for any failure on the part of the party of the second part to make the aforesaid payments in accordance with the aforesaid promissory note, the said party of the first part may, at his option, enter upon and take possession of the aforesaid mill, machinery, tools and appurtenances, together with all improvements made thereon, either with or without process of law, and to sell the same either at private or public sale, after having given ten (10) days written notice thereof by publication or otherwise, and to endorse upon said note after the payment of all expenses the money remaining from the sale thereof, it being distinctly understood that the party of the first part may, at his option, regard this merely as an option to purchase. Fifth. It is further understood and mutually agreed by and between the parties hereto that the covenants, stipulations and agreements herein contained shall be binding alike upon heirs, executors, administrators and assigns of the parties hereto as upon the parties themselves."

In July, 1908, the mill and buildings were moved by defendant company to the mines for the operation thereof and erected thereon, being permanently affixed to the soil. Additions were also made to the machinery and buildings at the same time, viz.: an engine, dynamo, concentrator, shafts, pulleys, etc., which were also permanently affixed to the soil, and in the month of February, 1909, Vinson duly assigned such agreement to the defendant company. Upon the trial a decree was rendered in favor of plaintiff. Defendant Flack appeals.

M.D. Clifford, for appellant.

Gustav Anderson, for respondent.

EAKIN J. (after stating the facts as above).

The first question for determination is whether the agreement between Flack and Vinson is a conditional sale or a chattel mortgage, and this must be ascertained from the intention of the parties as gathered from the language of the agreement. It recites that the first party "does hereby sell, assign, transfer, and set over unto the said party of the second part," etc. But it provides that, "until the entire purchase price shall have been paid, the title to the said mill and all machinery hereinbefore described shall be and remain in the party of the first part," clearly indicating a conditional sale. Such has been the holding of this court in several cases: Singer M. Co. v. Graham, 8 Or. 17, 34 Am.Rep. 572; Herring-Marvin Co. v. Smith, 43 Or. 315, 72 P. 704, 73 P. 340. The further stipulation in the agreement that "the said party of the first part may, at his option, enter upon and take possession of the aforesaid mill, machinery, tools, and appurtenances, together with all improvements made thereon, either with or without process of law, and to sell the same either at private or public sale *** and to endorse upon said note after the payment of all expenses the money remaining from the sale thereof" does not constitute it a chattel mortgage, as the plain intention of the parties was that the vendor shall retain the title. Freed Furniture & Carpet Company v. Sorensen, 28 Utah, 419, 79 P. 564, 107 Am.St.Rep. 731. Also, see note to this case in 3 Am. & Eng.Ann.Cas. 639. And as the mill was purchased by Vinson for the defendant corporation, for the operation of these mines, the title thereto remained in Flack, as against both Vinson and the defendant company. And this is the result even though the chattel be permanently affixed to the freehold, the agreement being permitted to control. It is held in Alberson v. Elk Creek Mining Company, 39 Or. 552, 65 P. 978, that "Latterly, the strict rule that whatsoever is affixed to the soil partakes of the nature and becomes a part of the realty itself has been much relaxed to meet the requirements of manufacturing industries and trade relations, so that now the question whether an article of personalty, in...