
    St. Regis Paper Company, Respondent, v. Watson Page Lumber Company, Appellant.
    Third Department,
    January 8, 1906.
    Assignment — parol assignment of written contract — when assignee can recover thereon—erroneous charge.
    When the defendant has contracted with the plaintiff’s assignor, from which it ■ leased a saw mill “ and all present facilities for manufacturing and handling lumber,” to return at the termination of the contract as many feet of lumber used as “ crossers” in lumber piles as it,now holds or pay "for any not so returned, the plaintiff under a parol assignment Of said contract can recover from the defendant the sum agreed to be paid for “ crossers” not returned.
    Such recovery cannot be defeated on the ground that title to the leased property did not pass under an assignment of the lease to the plaintiff, for the plaintiff is an assignee of the defendant’s contract to pay for “ crossers ” not. returned.
    When, however, the plaintiff as assignee of said contract and as grantee of the - saw mill seeks to recover the value of certain “covers” used for protecting lumber piles, which “ covers ” were not mentioned in the contract of the .defendant with the assignor, unless considered to be covered by the phrase “ all present facilities for manufacturing and handling lumber” contained in - the lease of the saw mill, it is error to charge that the plaintiff can recover . such- leased property of the defendant as assignee "of a contract not mentioning said “ covers,” for the presumption is that the title to said “ covers” remained in the assignor.
    Appeal by the defendant, the'Watson Page Lumber Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Franklin on the 20tli day of March, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s- office-on the 18th day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    On the 29th day of August, 1898, the Santa Clara Lumber Company, a domestic corporation, was the owner of "about 57,500 acres of timber land in the county of Franklin. It also owned a saw mill and lumber yard. On that day it entered into a contract in writing with the' defendant, the Watson Page Lumber Company, by which it agreed, in substance: First, to sell and deliver to the defendant a large quantity of logs, not less than 2,000,000 feet and not more than 3,000,000 feet per year, for five years; and, second, to lease its said “ saw mill, * * * together with its planing mill, lumber yard, side track, * * * and all present facilities for manufac-. turing and handling lumber, for a period of five years from April 1st, 1899, at the annual rental of two thousand' dollars, payable monthly in advance.” The 9th paragraph of such contract reads as follows: “ Ninth. The Watson Page Lumber Company agrees to return at the termination of this contract as many feet of lumber used as crossers in lumber piles as it now holds or pay for any not so returned at the rate of six dollars per thousand feet.”
    On May 29, 1899, the said Santa Clara Lumber Company sold and conveyed such timber lands to the plaintiff, the St. Regis Paper Company. Through inadvertence the saw mill property was omitted from the description .contained in such deed, and on the third day of July following the Santa Clara Lumber Company executed a deed to supply such omission.
    At the time of the execution of the contract above mentioned by the Watson Page Lumber Company it received with said mill and lumber yard from the Santa Clara Lumber Company 225,916. feet of “crossers” and 46,100 feet of “covers” or boards which were used to cover lumber piles. At the termination of said contract the plaintiff, claiming to be the assignee thereof; demanded from the defendant such crossers and covers, and upon a refusal to deliver the same brought this action to recover their value. Upon the trial the court held as matter of law that the crossers were included within the contract and passed by the assignment thereof to the plaintiff and directed a verdict in the plaintiff’s favor for their value as fixed by the contract, b.ut directed the jury to determine whether the value, of the covers should be added thereto. The court instructed the jury that, if the covers were received by the defendant as leased property, the plaintiff was entitled to recover for the same. The jury rendered a verdict for the value of both crossers and covers, and from the judgment entered thereon and from an order denying the defendant’s motion for a new trial made on the minutes this appeal is taken:
    
      John P. Badger, for the appellant.
    
      Elon R. Brown, for the respondent.
   Parker, P. J.:

As to the “ crossers ” for which the plaintiff seeks to recover in this action, the defendant received them from the Santa Clara Lumber Company, and it is clear that the plaintiff must show that it has succeeded to such lumber company’s interest therein before it can maintain this action, it is also clear from the evidence in this; record that this plaintiff entered into, a parol contract with such lumber company to purchase all the timber lands mentioned in the contract between such lumber company and the Watson Page Lumber Company, which is set forth in the complaint herein, and also to. purchase the mill, lumber yard, etc., with tlie appurtenances and fixtures thereto- belonging, and also all the rights and interests of such lumber company in such contract, and to assume all the ■ obligations:of such Santa Clara Lumber Company therein specified,.and that this plaintiff, in pursuance of sitch agreement, not only paid the price agreed upon-, but stepped into the place of the lumber company and also- fully performed with the defendant all' the obligations which the lumber company had thereby agreed to perform. These facts are so .clearly proven that they are hardly denied on .the part of the defendant. In performance of such agreement on its .part, the (Santa Clara Lumber Company executed conveyances of' the lands in such agreement specified. It also drew up an assignment of such contract and submitted it for the approval of this plaintiff, and the contract so submitted was, in its terms, entirely satisfactory to this plaintiff. Such instrument, however, was never signed by either party, but each of them proceeded to act under the agreement and it was ultimately carried out by_both the' parties thereto and by the Watson Page Lumber.’Company as if such, submitted assignment had been actually executed. We may, therefore, assume that-a parol assignment of the contract wás actually made from the lumber company to this plaintiff and that the terms^ thereof were as in such submitted assignment expressed. ■ v - ■

. That the mill and the lumber yard and fixtures were actually sold and conveyed to' this plaintiff and the éaid written contract and all of the lumber company’s interest therein was actually assigned to the plaintiff is fully established. But the question is: -Were the' crossers and covers, for which this action is brought, thereby sold and transferred to this .plaintiff % ,

It is claimed by the defendant that it does not appear that either of such articles of personal property were included in the parol agreement between the lumber company and this plaintiff, above referred to. It urges that, as to the crossers, they, at most, were personal property leased to the defendant with the mill, and that the sale of the mill and a transfer of the lease by the lessor, viz., the lumber company, would not operate to transfer the title to the property leased, and thus it took no interest therein by an assignment of such contract. True, if it is to be considered that the crossers were taken and held by the defendant merely as property leased to it for a term of five years. But by the 9th clause of such contract the defendant received the crossers under an agreement to return at the termination of "the contract as many feet of lumber as it then held of “ crossers,” or to pay therefor at the price of six dollars per thousand. By this agreement the defendant held such crossers, not merely as a lessee, subject to the rights and obligations which the law imposes upon such a relation, but it had the right to use and convert to its own use all of such crossers at any time and pay therefor at the agreed price of six dollars per thousand. In -other words, the defendant held the crossers not as a lessee, but under the contract obligation above specified. The defendant’s -counsel, in his points arid upon the argument, declares it to have been a sale of such crossers to the defendant, which I am inclined to think is a correct construction of the transaction; and in that case an assignment of such contract would, in my judgment, transfer to the assignee all of the lumber company’s rights to demand from the 'defendant the payment which by the terms of the contract so assigned it had contracted to pay. At the time of the assignment of such contract the rights of the lumber company in these crossers did not rest in the fact that it had the title thereto because, as against the defendant company, it could not claim that it had it, but in the contract obligation bn the part of the defendant contained in such 9 th clause to pay for them either in lumber or cash at the end of the term. Such contract obligation was transferred with .the assignment above referred to, and hence the plaintiff succeeded to the right of the lumber company to demand such payment from this defendant. The objection, therefore, that the title to leased property, does not pass with the assignment of the lease is not applicable to this case.

As to the “ covers ” there is no mention made of them, by that name, in the contract between the lumber company and this defendant. They were in. the lumber yard, however, at the time such contract was entered • into, and were received by the defendant by;

reason thereof. The .trial court left to the jury the question whether, by the phrase “ and all present facilities for manufacturing and handling lumber,” it was intended to include ,sueh covers as a part of the property leased. The jury have decided that it was so intended, and we may on this appeal so construe such contract. But, viewing that part of the contract which in its 2d clause refers to the mill, lumber, yard, etc., ás a lease merely, and the covers as leased property merely,,the' defendant urges the-objection that, as .to them the. assignment of such contract, or lease^ did uot transfer any of the property so leased; that, therefore, as t© those'covers there -is no evidence that the plaintiff' has in any -way . acquired any; title thereto or right to d'em-and the same.

The trial court instructed the jury -that if such covers were included in such contract as “leased, ” property; the plaintiff could recover their value-. The action and the recovery seem to he -based upon the theory that, in that event, the transfer of the contract, or lease; would vest the ownership of the leased' property, in the plaintiff, and, therefore, it could maintain “ trover ” against the defendant as a lessee who refused .to .surrender Up the leased property ©n demand after expiration of the lease. I am of the opinion that this view of the case is error. Assuming that tké defendant held the covers as a lessee, from the Santa Clara Lumber Company, and such ©ompan-y made no.other-transfer of its rights than by an assignment of such contract, or lease, its rights-to demand such covers on the expiration of the five years would, remain in the- lumber company,, and the plaintiff would take no right therein. (Demarest v. Willard, 8 Cow. 209; Huerstel v. Lorillard, 6 Robt. 260, 262; 7 id. 251, 267.)

If there were evidence of a parol sale of such* covers independent of 'the deeds-and of the assignment of such - contract, and if such .evidence were so conclusive that we could -assume,, as matter of law, that such a sale was made, we* might affirm this judgment on the theory that the verdict of the jury was correct, although as to the ©overs' it was reached upon an incorrect line of- reasoning. But while, upon the whole'case, there is little doubt but that a transfer of such covers was intended between the parties, yet the evidence was not so clear and undisputed as to warrant us in now holding, that they were so sold, and that the trial court was authorized to withhold that question from the jury. Without a finding of the jury upon that question, we may not say that the instruction of the trial court'as to the plaintiff’s title to the covers was harmless.

The defendant’s counsel takes several exceptions to the admission and rejection of evidence by the trial court; I am of the opinion that neither of them was a harmful error for which the judgment should be reversed.

My conclusion is that so much of the judgment as affects the plaintiff’s claim made and set forth in the first cause of action in its complaint, viz., its clqim for the crossers, should be affirmed, and that so much thereof as affects its claim for the covers, as set forth in its second cause of action in said complaint, is erroneous and should be reversed, and that as to such second claim a new trial should be had.

All concurred; Kellogg, J., not sitting.

So much of the judgment and order as affects the plaintiff’s claim made and set forth in the first cause of action in its complaint, to wit, its claim for the crossers, unanimously affirmed, and so much thereof as affects its claim for the covers, as set forth in the second cause of action in- said complaint, reversed, and as to such claim a new trial granted, without costs in this court.  