186 THE SALE OF TIMBER PRODUCTS 



in the contract for the forfeiture of all logs not delivered 

 within a certain time will not be enforced; x but a provision 

 that fifteen cents per hundred feet should be deducted from 

 the purchase price of all logs not delivered by a certain date 

 has been sustained as a statement of liquidated damages 

 and not a penalty such as the law will not enforce. 2 A loss 

 of logs or other timber products before delivery will fall upon 

 the seller, even though title has passed, if the seller has 

 failed to exercise ordinary care to prevent such loss; 3 but in 

 a Nevada case in which payment was to be made when char- 

 coal was delivered to a certain place it was held that, the 

 manufacture of the product having been completed, the 

 title had passed and the loss must fall upon the purchaser 

 ven though delivery to the place contemplated was not 

 effected previous to its destruction. 4 In Washington 

 under a contract for the cutting and rafting of logs which 

 provided that the price agreed upon was to be paid when the 

 logs were scaled, the court held that delivery was effected 

 when unsealed logs were turned over to the control of the 

 purchasers at their request, and that the seller could recover 

 the value of logs which had escaped from the control of the 

 purchasers' tug and had been negligently abandoned by 

 them. 5 In other words, the court held that title had passed 

 when the logs were taken by the purchasers' tug, even 

 though something remained yet to be done to ascertain the 

 total value of the property transferred. And in an Arkansas 

 case it was held that an agreement that the seller should re- 

 ceive an additional amount upon the completion of loading 

 the lumber sold, if it was found that there was a greater 

 amount than that named in the contract, did not operate to 

 defer the transfer of title until the exact amount of lumber 

 was ascertained. 6 The mere physical delivery of timber into 



1. Daniel v. Day Bros. Lbr. Co., 85 S. W. 1092 27 Ky. L. Rep. 650. 



2. Kilbourne v. Lbr. Co. (Ky.) 64 S. W. 631. Cf. Wall v. Lbr. Co. 124 La. 844. 50 



So. 769 (during floating season). 



3. Buie v. Browne, 28 N. C. 404; Bigler v. Hall, 54 N. Y. 167; Lbr. Co. v. Cornett. 



161 Ky. 98, 170 S. W. 516. 



4. Bianchi v. Maggini, 17 Nev. 323. See Woodstock Iron Co. v. Reed, 81 Ala. 305! 

 Izett v. Stetson & Post Mill Co. (Wash.), 60 Pac. 1128; Cf. Roy v. Griffln (Wash.) ; 



66 Pac. 120, (Shipment of shingles on bill of lading in name of purchaser.) 

 Eversole v. Wilson, (Ky.) 123 S. W. 1196; Noyes v. Marlott, 156 Fed. 753, 

 84 C. C. A. 409. 

 6. Anderson Tully Co. v. Rozelle, (Ark.) 57 S. W. 1102. 



