Trover, for railway ties. The plaintiff made a contract with D. & E., whereby he was to cut the ties from timber standing upon their land, and pay them for the ties and for drawing to the railroad, all that he should receive for them over ten cents each. Under the contract the plaintiff employed and paid choppers whs cut the ties, which D. & E. drew out and piled on land of the railroad.
Cited by 2 later decisions — most recently November 1936
2 state decisions
Good law ✅— No negative treatment on recordhow we know
¶1
The contract between D. & E. and the plaintiff did not constitute a sale of the ties.
Rowell
v.
Claggett, ante, p.
201. It was simply an agreement whereby the plaintiff' obtained a special property in them, for cutting them and negotiating their sale. The value of this special property was fixed by the agreement at ten cents a tie. In no event was the plaintiff' to receive more than this from the contract. The general property, retained by D. & E., was of an uncertain value, and depended upon the sale the plaintiff might be able to effect. The proceeds of the sale, less the value of the plaintiff’s interest, was the share which D. & E. had in the transaction.
¶2
When the attachment was made the plaintiff’s part of the contract was practically performed, although the sale was not complete. The general property in the ties remained in H. & E., and was subject to attachment for their debts. The plaintiff’s damages -were only the value of his special property, and this was what the jury were instructed to allow him.
