Herrman v. Whitescarver's Adm'r , 89 Ky. 633 ( 1890 )

CHIEF JUSTICE LEWIS

delivered the opinion oe the court.

This action was brought by appellant to recover of appellee, administrator of the estate of J. F. Whites-carver, possession of a raft of saw-logs.

It appears from finding of facts by the court, trial by jury having been waived, that December 2, 1886, Whitescarver purchased of A. Settle certain standing Umber, to be cut, measured and paid for before removal from the land; and December 10, 1886, Whitescarver entered into a written contract with appellant, in substance as follows: That J. F. Whitescarver * has sold to H. Herrman the poplar, ash, gum and walnut Umber on the land of A. Settle, * which he agrees to cut, haul and deliver to * Herrman, at Evansville, Indiana, on or before May 1, 1887, in such length and diameter, at prices as below mentioned; to be received at mouth of Green river, less cost of towage, and measured, Evansville log rule, on or about time of delivery, by H. Herrman; * said logs to be new, sound and straight, and free of shakes, hollows, large or unsound knots, and other defects, and of the dimensions of 12, 14 and 16 feet long, and to be well-rafted, and no wedge-pins used in rafting; and should either party, by death or otherwise, fail to comply with the within contract, H. Herrman to have the right to move sufficient amount of timber to cover the amount of money so advanced. In consideration of said sale and delivery of said logs, said H. Herrmann promises and agrees to pay said Whitescarver, when said logs afe delivered, the following prices,” &c.

The number of logs of each kind of timber agreed to be received of the dimensions mentioned is also set out in the contract. Whitescarver received two hundred and eighty-three dollars and twenty-five cents advanced, but died in January, 1887, before, any of the logs were delivered or rafted, and not long thereafter áppellant removed the logs in contest from the land where they had been cut, and rafted them. But appellee, who had been appointed administrator before they were removed by appellant, took possession of, claiming title to, the raft, and, adding other logs, carried it down the stream in which it was to Green river. And, thereupon, this action was instituted by appellant; and, under an order of delivery, possession being acquired by him, he took them to Evansville, where they were worth, at the contract price, ' two hundred and forty-one dollars and fifty cents.

Appellant’s right of recovery in this action depends upon whether he had, under the contract, acquired title to the logs prior to death of Whitescarver, for the only claim set up, or remedy sought, in his petition, is the possession.

It is well settled that when, according to a contract ■of sale, there is any thing to be done to personal property by the seller to put it in that state in which the purchaser is bound to accept, or when any thing remains to be done for the purpose of ascertaining the price, as by weighing, measuring or testing the property, when the price is to depend upon the quantity or quality of it, the performance of these things is a condition precedent to the transfer or vesting of the property. (Benjamin on Sales, §319.)

By the terms of the contract in this case, the logs were to be of certain kinds of timber, of specified ■dimensions, free from defects described, and to be rafted in a certain manner and delivered at a fixed place; and as none of these things had been done or ascertained previous to the death of the seller, the purchaser was not bound to accept, and, consequently, the property had not vested in him.

It is true the contract contains a provision that in case of the death of the seller, or failure to comply with it, the purchaser was to have the right to remove sufficient amount of timber to cover advances made. But we do not think that provision did, or was intended to, vest such title in the purchaser as to enable him to take possession after appointment •of the administrator, or at any other time, of his own will. It served, at most, only to create a lien on. the timber to pay the amount advanced; but whether it comes under the rule in Brooks, Waterfield & Co. v. Staton, 79 Ky., 174, and Cook’s Adm’r v. Brannin, Brand & Glover, 87 Ky., 101, and, in the language there used, created merely an inchoate lien, not enforceable against intervening rights of others, it is not necessary to decide, for no lien is in this case asserted or asked by appellant to be enforced. It is true section 8, Civil Code, provides that an error of the plaintiff as to the form of action shall not be canse for abandonment or dismissal of an action, but merely for a change into the proper proceedings by an amendment of the pleadings and a transfer of the action to the proper docket; but in this case there was no amendment of the pleadings, nor motion to transfer; consequently, the only issue to be tried or presented by the pleadings was, whether appellant had the legal title to, and was entitled to recover possession of, the logs, and upon that issue the law and facts were, we think, properly decided by the lower court, and the judgment must be affirmed.