
    [No. 5418.
    Decided February 23, 1905.]
    Cascade Boom Company, Appellant, v. McNeeley Logging Company, Respondent.
      
    
    Logs and Logging — Lien for Boomage Charges — Evidence of Agreement for — Sufficiency. Where a boom company’s boom was broken, and it was bung by a logging company, 'whose logs were thereupon caught therein, findings that there was no request or contract to catch and hold the logs and consequently no lien for the boomage charges, are sustained where there was evidence that the president of the boom company gave the manager of the logging company permission to hang and use the boom without charge, and the fact that the president was without authority so to do is immaterial since there was no request or contract for boomage services.
    Same — Failure of Lien — Rental Value of Boom Used— Pleading and Proof. In an action to’ foreclose a lien on logs for boomage charges, where it appears that the boom company performed no services, but its boom was bung and used by defendant, there can be no recovery for the rental value of the boom, upon plaintiff’s failure to establish the lien, when there is nothing in the complaint on which to base such claim, and no evidence, to show such rental value.
    Appeal from a judgment of the superior court for King county, Bell, J., entered March 1, 1904, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, dismissing an. action to foreclose a lien on logs.
    Affirmed.
    
      Corliss & Paull, for appellant.
    
      Charles O. Bates and John H. McDaniels, for respondent.
    
      
       Reported in 79 Pac. 793.
    
   Rudkin, J.

The plaintiff is a corporation, organized to build booms and to catch logs and timber products therein, under the act of March 17, 1890, and has filed in the office of the secretary of state a plat or survey, as required by § 2 of said act. The defendant is a corporation engaged in the logging business. In thé spring of 1902, the plaintiff constructed a boom across the Snoqualmie river above the falls. This boom consisted of six or seven boom sticks, from sixty to eighty feet in length, which were coupled together with chains, and the ends of the boom sticks were fastened to trees on the banks of the river, to hold the boom in place. In the fall of the year 1902, this boom broke, and swung along the bank of the river, where it remained until the month of May, 1903. Some time in the latter month, the manager of the defendant corporation had a conversation with the president of the plaintiff corporation, and, as a result of that conversation, the defendant replaced the boom across the river, in which position it remained until the month of October, 1903. During that time the boom caught and held some five million feet of logs belonging to the defendant. A lien was filed against these logs by the plaintiff, for labor performed and assistance rendered in securing the same. This action was brought to foreclose this lien. The defendant had judgment below, and from such judgment the plaintiff appeals.

The case turns entirely upon questions of fact. The conversation between the president of the appellant corporation and the manager of the respondent corporation, in relation to the use of the boom, was rather indefinite, and there was a conflict in the testimony as to the language-used. The witness Scott, president of the- plaintiff corporation, testified in relation to this conversation as follows:

“Mr. Wilcox says, Frank,’ he says, ‘how about that boom ?’ I says, ‘Do you want it hung ?’ ‘Well,’ he says, ‘yes.’ ‘Well,’ I says, ‘go and hang it.’ I says, ‘I am pretty busy; you have got lots of time; you go and hang it if you want it.’ He says, ‘All right,’ hei would. About ten days, I think, after that, he hung it.”

The witness Wilcox, manager o f the defendant corporation, related the conversa don as follows:

“I met Mr. Scott in Snoqualmie, and I asked him what he Was going to do with his boom that year. He said he was not going to do anything with it. I asked him what he would charge me to let me swing the boom and catch our logs, and ho hesitated, and lie says, ‘I won’t charge you anything;’ he says, ‘If you want to swing it, gu ahead and swing it.’ He says, ‘You can’t hurt those boom sticks.’ That was his very words. And I told him all right, I would take him up on it And so it might have been a week or ten days, or such a matter, and I had the boom strung.”

The latter witness was corroborated, in a measure, by the witness McNatt. This testimony utterly fails to show that the appellant caught and held the logs of the respondent at its request, as alleged in the complaint and lien notice, or as required by the statute. The utmost it tends to show is that the respondent took charge of and used the appellant’s boom, and thus rendered itself liable for the reasonable rental value thereof. The appellant claimed in argument that it should be allowed a recovery for such rental value at least. There are several objections to such a recovery in this action. There is no basis for such recovery in the complaint There is no testimony from which this court could determine such rental value, and no lien would attach to the logs to secure, its payment. We do not desire to be understood as holding that there was in fact any liability for the rental value in this case, as that question is not properly before us.

The appellant questions the authority of its president to grant the use of its boom free of charge; but, assuming that the president had no such authority, it would not avail the appellant in this case. If the president had no authority to act for or bind the appellant, then there was no request, and no agreement, express or implied, and we would simply have a case where the respondent took charge of and used the appellant’s boom. For reasons already stated, there can be no recovery for such use in this case.

In any event, the judgment appealed from is right, and the same is affirmed.

Mount, C. J., Hadley, Fullerton, and Dunbar, JJ., concur.

Root and Crow, JJ., took no part.  