Stone v. E. & T. Fairbanks & Co.

Waiver of Lien. Estoppel. Evidence. Conditional Leed. 1. One may waive by parol a lien on lumber reserved in a conditional deed, to secure the purchase price of the land, on which the lumber was cut.* 2. If he does so waive it, he is estopped from setting up title to the lumber against a third party purchasing of the plaintiff, who had bid it off at a sheriff’s sale to satisfy his debt against the grantee for cutting. 3. The facts, — that the lien-holder saw the plaintiff cutting the timber; that he made no objection to it; and that the evidence tended to show that he knew he was cutting on some contract with the grantee, tended to prove a waiver, and should have been submitted to the jury.

This case was tried at the June Term, 1880, Ross, J., presiding, Caledonia County. It is an action of assumpsit in common counts to recover for a quantity of lumber. Plea, non-assumpsit, and trial by jury. It appeared that the real defendant was L. E. Edwards, he having given his bond to the said E. & T. Fairbanks to save them from this suit. It was testified to on trial, uncontradicted, that one Cota employed the plaintiff to cut a large number of logs for sawing, on what the plaintiff supposed was land belonging to said Cota, that Cota had before that time bought of said L. F. Edwards; and the said Cota gave a lien on the logs to said Stone to secure him for his pay in cutting them. The said Stone went and cut the logs according to his contract. It was testified to, uncontradicted, that during the time Stone was cutting the logs Edwards came along and saw, and knew, Stone was cutting the logs, and made no objection to the same. The evidence tended to show that Edwards knew that Stone was cutting the logs, under a contract with Cota, and made no objection to the cutting; but there was no evidence tending to show that Edwards knew what the contract was, or that Stone had a lien on the logs to pay for the cutting; and Edwards on the stand denied having any such knowledge. The plaintiff brought a suit against Cota, and attached the same logs for his pay for the cutting. The logs were sold, Stone bidding them off, and then drew part of them into the mill of the defendants, and sold them to the defendants. There was such a defect in the proceedings of the suit of Stone against Cota that the court held that Stone got no title to the logs, by virtue of the attachment and sale. The plaintiff claimed under his contract with Cota, and his lien on the logs, that he had a right to sell a sufficient number of the logs to pay him for the cutting ; that if Edwards knew of this contract, allowed the plaintiff to cut and draw the logs into the mill, he would be estopped from set ting up any title to them. The court held otherwise, to which the plaintiff excepted. It appeared that after Stone sold the logs he had .bid off on that sale on his said execution against Cota to E. & T. Fairbanks & Co., had drawn into the mill a part of them, and Edwards set up a claim to the logs, and agreed with Fairbanks, if they would pay him he would indemnify them from Stone. And this suit is brought for the purpose of recovering pay for the logs, delivered to the mill by Stone, that had been cut by him, to the extent of his pay for the cutting. The said Edwards took upon himself the defense of the suit, and offered in evidence a copy of a deed from himself to Cota. ' The plaintiff objected to the admission of said copy, which was overruled ; to the admission of which the plaintiff excepted. The defendant offered no evidence except said Edwards and said copy of deed ; and Edwards did not in any way or manner deny, but that he knew the plaintiff was cutting the logs for Cota under a contract, but did deny that he knew the terms of the contract, or that the plaintiff had by it a lien on the- logs to pay for the cutting. The court held there was no evidence to go to the jury, and directed a verdict for the defendant, to which the plaintiff excepted. Exceptions allowed, execution stayed, and cause passed to the Supreme Court. If there was a defect in the sale on the execution, the plaintiff could sell under the statute enough to pay him for cutting. The deed was not evidence, till it was shown that Cota had failed to pay according to the agreement, and because the certificate did not show when it was received for record, or was so received until after the logs were cut. Edwards is estopped from asserting title to the logs in himself. Cady v. Owen, 34 Yt. 598. All the title the plaintiff had was derived from Cota ; and his title was by the conditional deed. Edwards’ title is perfect unless he has done something by which he is estopped. He knew plaintiff was cutting, but how, or on what terms, he did not know — indeed, had no right to know. He did not induce the parties to contract. Stone’s conduct was not in any manner influenced by the acts, words, or silence of Edwards. Therefore, Edwards is not now estopped from setting up his title. 35 Yt. 219.