Beagle v. Cable

Headnote

Guaranty—Time for Payment.

L. contracted to cut the timber off the land of O., and manufacture it into lumber, he to have therefor half the proceeds, when the lumber was sold by C., which was to be when there was a suitable market, certain advances to be made in the meantime. B. then contracted to do the sawing for L., he to have a certain amount per 1,000 feet sawed, half to be paid as the work progressed, and the balance “when the remaining sum shall become due,” as per the contract of C. with L. C. then guarantied the payment of the saw bill “provided for in the foregoing contract, upon the terms and conditions therein imposed.” Held, that though L. broke his contract with B. by furnishing only part of the logs to saw, and paid only half the saw bill for those sawed, B. could not recover the other half of C. till the sale of the lumber.

Appeal from special term, Delaware county.

Action by Harvey Beagle and others against Edwin B. Cable. From a judgment on the decision of the trial court for plaintiffs, defendant' appeals.

Reversed.

On the 9th day of September, 1897, the defendant and one Buckbee, being then the owners of a tract of woodland, all the timber upon which they desired to cut and fit for market, so far as it was suitable for that purpose, entered into an agreement in writing with Leg & Eggleston, by which the latter agreed to cut and manufacture the said timber into lumber, ties, and posts, and deliver the same at Beers’ Switch, a railroad station, on or before July 1, 1898. Lee & Eggleston were to receive in full payment for their services one-half the proceeds of the manufactured timber. By the terms of the agreement, the title and possession of the property was to be and remain in Cable & Buckbee, Cable was to have the exclusive right to sell and market the property when in condition to sell, and receive the pay therefor, and one half of the cash, when received, was to be retained by Cable & Buckbee, and the other half paid to Lee & Eggleston, less all advances made by Cable to them on the job. As fast as 1,000 ties were sawed, $50 per thousand in number was to be advanced to Lee & Eggleston, and when all the hemlock saw logs were delivered in the mill yard $1 per thousand was to be advanced, and when all the pine logs were so delivered $2 per thousand. In case satisfactory market could not be found for the lumber, ties, etc., on or before July 1, 1898, then the lumber was to be stacked upon the mill yard, and the ties, etc., on the railroad land provided at or near Beers’ Switch, until such time as a suitable market could be obtained for the property. On the 3d November, 1897, Lee & Eggleston entered into a contract in writing with one Apply, whereby the latter agreed to move his sawmill upon a selected site on the lot, and do all sawing required to be done in and by the contract of September 9, 1897, for the price for the ties of 4 cents each, and for the lumber of $2 per thousand, payable as follows: When 1,000 ties were sawed and counted, $20, and a like sum as often as a like number was sawed and counted, and $25 when 25,000 feet of lumber was sawed and counted, and a further like sum when a further like quantity was sawed and counted. The remaining portion for sawing was to be paid as follows: Two cents each for the ties when they were counted and accepted by tlie railroad in conformity to the contract of September 9th, and the remaining $1 per thousand for the lumber when the entire job shall be finished up in conformity with the contract of September 9th, and when the remaining sum shall become due as per the terms of that contract. At the same time, and as a part of the transaction with Apply, the defendant made and indorsed upon the contract the following: “Walton, N. Y., November 3, 1897. Ear value received, I hereby guaranty the payment of the saw bill provided for in the foregoing contract upon the terms and conditions therein imposed. E. B. Cable.” Thereafter Apply moved his sawmill upon the lands, and on the 18th

December, 1897, transferred all bis interest in the contract to the plaintiffs, who agreed to do all the sawing required to he done by Apply. The plaintiffs, proceeded with the work, and sawed lumber to the amount of 82,668 feet, and railroad ties to the number of 6,903, when Lee & Eggleston refused to furnish logs for sawing, and forbade the plaintiffs from proceeding with the further-performance of the contract, and no further sawing was done. The plaintiffs were ready and willing to continue, and up to that time had performed the contract with Lee & Eggleston. The latter then abandoned their contract with Cable & Buckbee, leaving a large portion thereof unperformed. The-price for sawing the lumber and ties that were sawed amounted, according to-the rate specified in the contract, to the sum of $441.46. The plaintiffs had received from the defendant on account of the sawing, up to the time they stopped, the sum of $215, leaving a balance of $226.46, which has not been, paid. This action was commenced in August, 1898, for the recovery of such, balance from the defendant on his guaranty. It was held by the trial court that, for any sawing done by the plaintiffs under their contract with Lee & Eggleston for which they could recover of them the contract price, they could' recover the same from the defendant under the terms of the guaranty. Judgment was therefore ordered for the plaintiffs for the balance of $226.42 and' interest.