Question

McNeely entered into a contract with Wagner to pay $250,000 as a lump sum for all timber present in a given area that Wagner would remove for McNeely. The contract estimated that the volume in the area would be 780,000 board feet. Wagner also had provisions in the contract that made no warranties as to the amount of lumber and that he would keep whatever timber was not harvested if McNeely ended the contract before the harvesting was complete. The $250,000 was to be paid in three advances. McNeely paid two of the three advances but withheld the third payment and ended the contract because he said there was not enough timber. Wagner filed suit for the remaining one-third of the payment. McNeely said Wagner could not have the remaining one-third of the payment as well as the transfer; he had to choose between the two remedies. Is he correct

Answer 1

According to McNeely, Wagner had to choose between seeking the remaining payment ($250,000 x 1/3) or keeping the timber.

This was a real case: "Glen WAGNER and Bonnie Wagner, Respondents, v. Theodore R. McNEELY, Appellant. (96 CV 0525; CA A100217) , July 07, 1999"

The Court of Appeals of Oregon ruled that due to usage and customs of the timber industry in Oregon, there was nothing illegal in the plaintiff (Wagner) keeping the timber and seeking the payment. It was a very technical issue regarding two different rules that seem to be contradictory (ORS 72.7090 and ORS 72.7190). The court actually decided not to rule on this issue, so the lower court's decision remained.