By tbe Court,
Kelly, C. J.:
This was an action for the recovery of personal property brought by the appellants against the respondents, for the possession of nine hundred and twelve fir logs of the value of three thousand seven hundred dollars, in which the appellants, who were the plaintiffs below, claimed that they were lawfully possessed of the same.
This was denied by the defendants, who claimed that they were lawfully possessed of the property and entitled to its return.
The case was tried by the court by consent of the parties without a jury, and the following findings of fact were made: That the timber from which the logs in dispute were cut and manufactured, originally was the property of one Charles Horner, who sold it to one James Whybock, as it grew upon [424]*424liis land; Whybock having the right to remove it within two years from January 6, 1876.
That thereafter, the said James Whybock, executed, and delivered to the appellants the following writing:
‘ ‘ Know all men by these presents, that I, James Whybock, of Coos county, Oregon, for and in consideration of the payment and terms hereinafter mentioned, have bargained and sold, and by these presents do sell and convey unto E. B. Dean & Co., all the timber formerly owned by Charles Horner, and purchased bj- me from said Charles Horner on the eighth day of December, 1875. This sale is made for and in consideration of fifty cents per thousand feet of logs, cut and manufactured from said timber; said sum to be placed to my credit at the time of delivery of said logs at said mill; provided, and this conveyance is upon the condition that said E. B. Dean & Co. shall cut and remove said timber within two yeai’s from this date; to have and to hold the said property unto said E. B. Dean & Co. and assigns forever.
“In testimony whereof, etc.”
That thereafter, upon the same day, the same parties entered into the following agreement:
“This agreement, made this sixth day of January, A. D. 1876, by and between James Whybock, of the first part, and E. B. Dean & Co., of the second part, witnesseth: That said party of the first part, for and in consideration of the terms herein written, agreed to cut and manufacture into saw-logs and deliver to the party of the second part, at their mill in Marshfield, all the timber belonging to the said party of the first part on the lands of Charles Horner, in Coos county, Oregon, or as much of said timber as said party of the first part can reasonably cut and deliver within the period of two years from the date of this agreement. Said party of the second part hereby agrees to pay for the work and labor herein agreed to be performed by the party of the first part the sum of four dollars and fifty cents per thousand feet of logs, cut and delivered as aforesaid.
“ The party of the second part further agree that they will furnish a reasonable amount of supplies and money [425]*425to enable said party of the first part to carry on the work aforesaid, the money and supplies advanced to be received by the party of the first part in part payment for such work.
‘ ‘ In witness whereof, etc.”
That the logs described in the complaint were cut and manufactured by the said James Whybock from the timber described in the written agreements set forth; that the respondents herein were employed by the said James Why-bock, as laborers, in cutting and putting in the water the said saw-logs, and did furnish their labor in cutting and putting in the water said logs; that there was due from Whybock for said services, and unpaid on the fifth day of October, 1877, the sum of five hundred and eighty-nine dollars and ninety-eight cents; that on said fifth day of October, A. d. 1877, Whybock delivered to the respondents the possession of said logs, to retain them as a pledge for the payment to them of said sum of five hundred and eighty-nine dollars and ninety-eight cents; that at the time the respondents performed said services, and at the time when they took possession of said logs, they had no knowledge or notice of the written agreements referred to, and in good faith believed that the timber from which they were cut was the property of Whybock.
As conclusions of law the court found: That as against the respondents the appellants were not the owners or entitled to the possession of said logs; that the respondents were entitled to the possession of them and were entitled to a judgment for the return to them of the logs or for the sum of three thousand seven hundred dollars, the value thereof, if a return could not be had, and judgment was entered accordingly. The errors assigned by appellants are substantially as follows:
1. That from the facts found by the court, the appellants were the owners and entitled to the possession of the logs; 2. That from the facts found, respondents were not entitled to the possession of the logs; 3. That from the facts found, if a return of the property could not be had, the judgment in favor of the respondents should have been for five bun[426]*426dred and eighty-nine dollars and ninety-eight cents, and not for three thousand seven hundred dollars, the value of the logs.
The appellants claim that by the first written agreement, set forth in the findings of the court, dated January 6,1876, James Whybock sold and delivered to them the growing timber, which he had purchased from Charles Horner, and out of which the logs in controversy were made, and that by virtue of such sale they received possession of the same. They further claim that such possession was not re-transferred to Whybock by the second agreement set forth in the findings of the court, and consequently he could not legally give possession to the respondents.
It is unnecessary for us to consider what would be the legal effect of the first agreement, standing by itself, as between the parties to it. The two contracts being contemporaneous, and relating to the same subject-matter, must be construed together as constituting but one agreement. (2 Par. on Con. 503; Cornell v. Todd, 2 Denio, 130; Craig v. Wells, 1 Kernan, 315; Makepeace v. Harvard College, 10 Pick. 302; Sibley v. Holden, Id. 250; Chitty on Contracts, 89, note 1.)
When the two instruments in writing, dated January 6, 1876, are thus construed as forming one contract, the agreement is substantially as follows: Whybock sold to E. B. Dean & Co. all the timber which he purchased from Horner on the eighth day of December, 1875, in consideration of fifty cents per thousand feet of logs, to be cut and manufactured from the timber. Whybock, however, was to cut and manufacture the timber into saw-logs, and deliver them to E. B. Dean & Co. at their mill. He was to cut all the timber, or so much of it as he could reasonably cut and deliver within two years from the date of the agreement. E. B. Dean & Co. agreed to pay him four dollars and fifty cents per thousand feet of logs cut and delivered at their mill in Marshfield.
The possession of the timber, after these agreements were made, was clearly in Whybock. He was not, as claimed by appellant’s counsel, in the custody of it merely as a servant [427]*427or hired man, employed by them to cut the timber into saw-logs. He could not be discharged by them at will, as a hired man could.
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By tbe Court,
Kelly, C. J.:
This was an action for the recovery of personal property brought by the appellants against the respondents, for the possession of nine hundred and twelve fir logs of the value of three thousand seven hundred dollars, in which the appellants, who were the plaintiffs below, claimed that they were lawfully possessed of the same.
This was denied by the defendants, who claimed that they were lawfully possessed of the property and entitled to its return.
The case was tried by the court by consent of the parties without a jury, and the following findings of fact were made: That the timber from which the logs in dispute were cut and manufactured, originally was the property of one Charles Horner, who sold it to one James Whybock, as it grew upon [424]*424liis land; Whybock having the right to remove it within two years from January 6, 1876.
That thereafter, the said James Whybock, executed, and delivered to the appellants the following writing:
‘ ‘ Know all men by these presents, that I, James Whybock, of Coos county, Oregon, for and in consideration of the payment and terms hereinafter mentioned, have bargained and sold, and by these presents do sell and convey unto E. B. Dean & Co., all the timber formerly owned by Charles Horner, and purchased bj- me from said Charles Horner on the eighth day of December, 1875. This sale is made for and in consideration of fifty cents per thousand feet of logs, cut and manufactured from said timber; said sum to be placed to my credit at the time of delivery of said logs at said mill; provided, and this conveyance is upon the condition that said E. B. Dean & Co. shall cut and remove said timber within two yeai’s from this date; to have and to hold the said property unto said E. B. Dean & Co. and assigns forever.
“In testimony whereof, etc.”
That thereafter, upon the same day, the same parties entered into the following agreement:
“This agreement, made this sixth day of January, A. D. 1876, by and between James Whybock, of the first part, and E. B. Dean & Co., of the second part, witnesseth: That said party of the first part, for and in consideration of the terms herein written, agreed to cut and manufacture into saw-logs and deliver to the party of the second part, at their mill in Marshfield, all the timber belonging to the said party of the first part on the lands of Charles Horner, in Coos county, Oregon, or as much of said timber as said party of the first part can reasonably cut and deliver within the period of two years from the date of this agreement. Said party of the second part hereby agrees to pay for the work and labor herein agreed to be performed by the party of the first part the sum of four dollars and fifty cents per thousand feet of logs, cut and delivered as aforesaid.
“ The party of the second part further agree that they will furnish a reasonable amount of supplies and money [425]*425to enable said party of the first part to carry on the work aforesaid, the money and supplies advanced to be received by the party of the first part in part payment for such work.
‘ ‘ In witness whereof, etc.”
That the logs described in the complaint were cut and manufactured by the said James Whybock from the timber described in the written agreements set forth; that the respondents herein were employed by the said James Why-bock, as laborers, in cutting and putting in the water the said saw-logs, and did furnish their labor in cutting and putting in the water said logs; that there was due from Whybock for said services, and unpaid on the fifth day of October, 1877, the sum of five hundred and eighty-nine dollars and ninety-eight cents; that on said fifth day of October, A. d. 1877, Whybock delivered to the respondents the possession of said logs, to retain them as a pledge for the payment to them of said sum of five hundred and eighty-nine dollars and ninety-eight cents; that at the time the respondents performed said services, and at the time when they took possession of said logs, they had no knowledge or notice of the written agreements referred to, and in good faith believed that the timber from which they were cut was the property of Whybock.
As conclusions of law the court found: That as against the respondents the appellants were not the owners or entitled to the possession of said logs; that the respondents were entitled to the possession of them and were entitled to a judgment for the return to them of the logs or for the sum of three thousand seven hundred dollars, the value thereof, if a return could not be had, and judgment was entered accordingly. The errors assigned by appellants are substantially as follows:
1. That from the facts found by the court, the appellants were the owners and entitled to the possession of the logs; 2. That from the facts found, respondents were not entitled to the possession of the logs; 3. That from the facts found, if a return of the property could not be had, the judgment in favor of the respondents should have been for five bun[426]*426dred and eighty-nine dollars and ninety-eight cents, and not for three thousand seven hundred dollars, the value of the logs.
The appellants claim that by the first written agreement, set forth in the findings of the court, dated January 6,1876, James Whybock sold and delivered to them the growing timber, which he had purchased from Charles Horner, and out of which the logs in controversy were made, and that by virtue of such sale they received possession of the same. They further claim that such possession was not re-transferred to Whybock by the second agreement set forth in the findings of the court, and consequently he could not legally give possession to the respondents.
It is unnecessary for us to consider what would be the legal effect of the first agreement, standing by itself, as between the parties to it. The two contracts being contemporaneous, and relating to the same subject-matter, must be construed together as constituting but one agreement. (2 Par. on Con. 503; Cornell v. Todd, 2 Denio, 130; Craig v. Wells, 1 Kernan, 315; Makepeace v. Harvard College, 10 Pick. 302; Sibley v. Holden, Id. 250; Chitty on Contracts, 89, note 1.)
When the two instruments in writing, dated January 6, 1876, are thus construed as forming one contract, the agreement is substantially as follows: Whybock sold to E. B. Dean & Co. all the timber which he purchased from Horner on the eighth day of December, 1875, in consideration of fifty cents per thousand feet of logs, to be cut and manufactured from the timber. Whybock, however, was to cut and manufacture the timber into saw-logs, and deliver them to E. B. Dean & Co. at their mill. He was to cut all the timber, or so much of it as he could reasonably cut and deliver within two years from the date of the agreement. E. B. Dean & Co. agreed to pay him four dollars and fifty cents per thousand feet of logs cut and delivered at their mill in Marshfield.
The possession of the timber, after these agreements were made, was clearly in Whybock. He was not, as claimed by appellant’s counsel, in the custody of it merely as a servant [427]*427or hired man, employed by them to cut the timber into saw-logs. He could not be discharged by them at will, as a hired man could. He had the sole right to cut all the timber on the land; or so much as he was able to cut within two years. No other person could be employed by appellants to do the work, so long as Whybock fulfilled his agreement with them. He was by the terms of the contract to deliver the logs at their mill and to be paid four dollars and fifty cents per thousand feet for all the logs he should deliver to them. Delivery of property by one person to another presupposes that the one delivering it has the possession. . Delivery is defined to be the transmitting the possession of a thing from one person to another; and it only takes place in the sale of property, when nothing remains to be done by the seller as between him and the buyer.
Upon whom would the loss have fallen in case the logs had been destroyed before they were delivered by Whybock at E. B. Dean & Co’s, mill ? Clearly upon him. (Story on Bailments, sec. 427, a.) And if upon him, then he was in possession of them.
Having the exclusive right to cut the timber into saw-logs, he lawfully could and did employ the respondents to do it for him; and for their labor in so doing they had a lien upon the property on which their labor was bestowed. The possession of the logs was given by Whybock to respondents, on October 5, 1877, to be retained by them as a pledge for the payment of five hundred and eighty-nine dollars and ninety-eight cents due for their services. Independent of any statutory regulation, they had a right to retain this possession until the lien was discharged by a payment of the money due for their labor.
But it is claimed by the appellants that the judgment of the court below was erroneous in this; that if the property could not be returned, they were required to pay three thousand seven hundred dollars, the value thereof, instead of five hundred and eighty-nine dollars and ninety-eight cents, the sum due to respondents. We hold that there was no error in this respect.
The respondents received the possession of the logs from [428]*428Whybock, and they had no right upon the payment of their lawful demand to surrender that possession to any person other than the one from whom they received it. A bailee is bound to deliver the goods back to the person by whom he has been intrusted with the custody of them. (Story on Bailments, see. 450; Lyle v. Barker, 5 Binney, 457; Pomeroy v. Smith, 17 Pick. 86.)
A bailee is bound to protect the rights of his bailor, as well as his own. He can not lawfully deliver the goods intrusted to him to one who is a stranger to the transaction, and thereby defeat any rights or lien which the bailor may have in the property committed to him.
It is claimed by appellants that the cases of Single v. Barnard, 29 Wis. 463; and Warner v. Hunt, 30 Wis. 200, support the position assumed by them, that the respondents are only entitled to a return of the property, or the value thereof, in ease a return can not be ■ had, to the extent of five hundred and eighty-nine dollars and ninety-eight cents. We do not consider the cases analogous to the one before this court.
The former was an action of replevin to recover a quantity of logs, brought by those claiming to be the owners and entitled to the possession against the sheriff, who had seized the logs by virtue of an execution in favor of a lumberman who had a lien upon them. It was held that the defendant had a right to hold the lumber to the amount of the execution in his hands to satisfy the lumberman’s lien. The case in the 30 Wis. was an action of replevin for recovery of a cow detained by a poundmaster. The plaintiff in the case claimed that he was the owner and lawfully entitled to the possession of the animal.
The defendant in his answer denied the allegations in the complaint and gave notice that he claimed a lien for two dollars and fifty cents as poundmaster. The jury found for the defendant and that he was entitled to the possession of the property and assessed the value at forty dollars. Upon this verdict there was judgment that the defendant have a return of the property, which had been delivered to the plaintiff, or if return could not be had, that the defendant recover [429]*429from the plaintiff the value thereof, assessed at forty dollars. This was the judgment in the court below, and was reversed by the supreme court, on the ground that the defendant liada special property in the cow of only two dollars and fifty cents, and ought not therefore to have a judgment for forty dollars. These cases have no analogy to the one under consideration. In both of. them the contest was between the owners of the property sought to be recovered as plaintiffs and persons having a special property as defendants. In neither of them was there an intervening claim paramount to that of the plaintiff as in the case before us. If the claim and lien of Whybock were out of the way, then the Wisconsin cases relied on by appellant’s counsel would be analogous to this one. Whybock had a right to the possession of the logs as against E. B. Dean & Co., until they should be delivered at their mill. He had this right when he pledged them to the respondents, and it was neither destroyed nor lessened by giving them in pledge to his workmen. A bailee is bound not only to return the goods to the bailor when his demand is satisfied, but he is equally bound to defend the interests of the bailor in an action brought to recover the property by one not entitled to the possession of it. In the case of Pomeroy v. Smith, 17 Pick. 85, one Atkinson pledged certain goods to the plaintiff as collateral security for the payment of a debt due to him from Atkinson, and also for the indemnification of the plaintiff against certain liabilities incurred by him as surety for Atkinson. After the goods were delivered to the plaintiff, they were attached as the property of Atkinson, by the defendant, who was a constable, and taken from the possession of the plaintiff.
The defendant contended that if the plaintiff, upon the evidence, was entitled to a verdict, he should recover only such a sum in damages, as would discharge the debt due to him from Atkinson, and indemnify him against such liabilities. But the judge instructed the jury that if they should find a verdict for the plaintiff, he was entitled to recover damages to the full value of the goods so taken by defendant. The jury returned a verdict for the plaintiff and assessed damages in conformity with the instructions of the judge. [430]*430On appeal to the supreme court the judgment was affirmed. Shaw, O. J., delivering the opinion of the court said: “ The judge ruled that the plaintiff was entitled to recover the value of the goods. The general rule is found on the consideration, that for all beyond the debt for which the goods are pledged, the pledgee is responsible to the pledgor.”
So in the supreme court of Pennsylvania, it was held that a pawnee may recover the full value of goods, against a stranger, who takes them away, although they were pledged to him for less, being answerable to the pawnor for the excess. (Lyle v. Barker, 5 Binn. 457; Story on Bailments, sec. 352.)
The judgment is affirmed.