I am unable to concur in the foregoing opinion. As the case is important to the parties immediately involved, and as the principles announced are of some importance to the business world, I feel justified in stating as briefly as I may, the reasons for my dissent.
The record as it is presented to us is very meager. But it can be gathered therefrom that on January 4, 1924, the appellant, Boerner was the owner of certain standing timber which he desired to cut and manufacture into marketable timber products. He was unable to finance the operation, and sought the aid of the defendant, Northern Timber Products Company, a concern then engaged in the business of buying and selling manufactured timber products. The result of the negotiations was the contract referred to, and quoted in part, in the majority opinion. By its terms, it will be observed, the appellant was to cut and manufacture the timber into dimension products, and deliver the products to the timber company at a designated place. The timber company, on its part, agreed to make the advances necessary to enable the work to proceed, and take the products at the place of delivery, and pay for them at prices stated in the contract. The record is silent as to what was done in the execution of the contract, but it is inferable that the timber company did make certain advances. The trial court expressly found, however, that these had all been repaid at the *Page 24 time the transaction arose which gives rise to the immediate controversy. At that time the appellant owed the timber company nothing. He was then entitled to a payment in cash for the products.
The majority hold that the mere piling up of the products at the place of delivery was an actual delivery, vesting in the buyer absolute title in and right of control over the products. This, I think, is a misconstruction of the contract. That there was no actual delivery, the record conclusively shows. The appellant not only refused to deliver without the payment of the agreed purchase price, but he did not part with his possession and control of the property. All that he did was to take the property to the place of delivery and offer to deliver it on the payment of the purchase price. When payment was refused him, he retained it in his possession and never thereafter parted with his possession until the property was, by mutual agreement, turned into money, and then he retained his hold on the money. That this was a delivery sufficient to pass title under the contract, I cannot conceive.
Nor am I able to follow the majority in their holding that the appellant was, under the contract, required to make a delivery without payment. While the contract did not expressly provide that payment should be made on delivery, yet this condition is implied in the contract. Where no time is fixed for payment, payment and delivery are immediate and concurrent acts, and the seller may refuse to deliver without payment. Our prior cases are in accord with this doctrine. In Loewi v. Long, 76 Wn. 480,136 P. 673, we said:
"It is the rule that where the time of payment is not mentioned, then the law provides that the delivery of the article and the payment of the purchase price shall be concurrent acts." *Page 25
See, also, Adams v. Ames, 19 Wn. 425, 53 P. 546;Robinson v. Thoma, 30 Wn. 129, 70 P. 240.
Such, also, as I understand it, is the rule of the Uniform Sales Act (Laws of 1925, Ex. Sess., p. 355); Rem. 1927 Sup., § 5836-1. By section 42 of that act it is provided that, unless it is otherwise agreed, delivery of the goods and payment of the purchase price are concurrent conditions; that is to say, the seller must be ready and willing to give possession of the goods to the buyer for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods.
But the majority seem to think that the appellant, by shipping the lumber on the order of the timber company, recognized that the title to it had passed to that company. Indeed, it is said that he did so "evidently because he knew it did not belong to him." To the general charge, it is a sufficient answer to say that the appellant did not, by that act, part with his possession of the property; he shipped it in his own name and retained possession of the bills of lading. But the clause quoted is, I think, an unjust censure on the conduct of the appellant. The dispute at that time between the parties was not over the title or over the right of possession. The timber company was not then contending that it was under no obligation to pay for the lumber at the time of delivery, but was contending that it had paid for it, while the appellant disputed the fact of payment. This is evidenced by the fact that the trial court made a specific finding on the issue, and the further fact that the parties, in their stipulation for the sale of the lumber, stipulated that the proceeds of the sale should be held by a stakeholder to await the determination of the dispute between them; a matter utterly immaterial, if the theory of the majority is tenable. I prefer, therefore, to think that the shipment *Page 26 and sale were by agreement, and not the result of any doubts as to his rights on the part of the appellant. It follows, as of course, that if no title passed to the lumber by the act of placing it at the place of delivery, the judgment directed by the majority is wrong.
But I think it wrong on the theory that the title did pass. As I have before stated, the record conclusively shows that the appellant did not part with his possession of the lumber (until, of course, at the time of its subsequent sale), and it is likewise as conclusively shown that the timber company did not pay, and has not yet paid, the purchase price it agreed to pay for it. Under these conditions, the Uniform Sales Act again comes to the appellant's relief. By § 52 of the act, a seller of goods is defined to be an unpaid seller when the whole of the price agreed to be paid for the goods has not been paid or tendered; and by § 53, he is given a lien on the goods and the right to retain them for the price while he is in possession of them, notwithstanding the property in the goods may have passed to the seller by the contract of sale. Such, moreover, is the general rule in the absence of statute. As stated by Mr. Mechem, in his work on Sales (Vol. II. § 1474):
"It is everywhere conceded that the seller of goods which still remain in his possession, and concerning which no special agreement as to delivery or payment has been made, has, unless he has waived it, a lien upon the goods to enforce the payment of the price, and may, for that purpose, retain possession of them until the price is paid. This right, of course, implies that the title to the goods has passed to the vendee, for the seller can have no lien upon goods which still remain his own."
The right here given cannot be meaningless, and, manifestly, it can have no meaning, unless it is that the property cannot be taken away from the seller *Page 27 without the payment to him of the purchase price, and the right, attaching as it does to the property itself, follows it into its substituted forms. In my opinion, therefore, since the appellant did not relinquish his hold on the property until it was sold by agreement, and since he retained his hold on the proceeds of the sale, the proceeds cannot rightfully be taken from him either by the timber company, or by its creditors, until the purchase price is paid.
There is still another principle which, in my opinion, controls the case against the conclusion of the majority. While the trial court made no finding on the question, the record as a whole shows that the timber company was insolvent at the time this particular property was ready for delivery. In fact, it was so stated in the argument at bar by counsel for the creditor respondents as a reason why they were pursuing this particular fund instead of executing on other property of their judgment debtor. It is the rule, both under the Uniform Sales Act and under the general rule of law, that, where the buyer of goods becomes insolvent before actual delivery, the seller may retain possession of them until payment or tender of the purchase price. Laws of 1925, Ex. Sess., p. 378, § 54; Rem. 1927 Sup., § 5836-54; 24 R.C.L., p. 125, par. 395; Thomas v. Coast Carton Co.,143 Wn. 660, 255 P. 1041. So, were the other considerations I have mentioned of no avail, the appellant, under this rule, has the right to retain possession of the property until he is paid the agreed purchase price.
Again, it must be conceded that the creditors of the timber company have no higher or greater rights in the fund garnished than has the timber company itself. This being so, I cannot conceive how they are entitled to recover the entire fund. If the contest was solely between the appellant and the timber company, would *Page 28 this court, or would any court, say that the appellant could not defend to the extent of the purchase price due him? Would it be said that the appellant must submit to a recovery of the entire fund and then seek to recover the amount due him in an independent action? To so say, it seems to me, is to deny the application of the usual and every-day principle of set-off. Undoubtedly, I think, were such the situation, the court would allow the amount due on the purchase price as a set-off, and allow a recovery only for the surplus remaining. Since the garnishee respondents derive their rights and all of their rights to the fund from the timber company, they should not be allowed a greater recovery.
It is my opinion, therefore, that this court should reverse and remand the case with instructions to find the amount due the appellant, direct that this amount be paid to him, and allow the garnishing creditors any sum that may remain.
HOLCOMB, FRENCH, and PARKER, JJ., concur with FULLERTON, J. *Page 29