-This is an action to replevin lumber, bought by defendant Ooburn from respondent, and subsequently sold to *590appellant. Respondent manufactured the lumber at Valley, Washington. Coburn was a dealer in lumber iu Spokane. Appellant was a contractor and builder in the last mentioned city. Cobum by letter ordered two carloads of lumber from respondent, both of which were shipped to him at Spokane. Cohum was absent from Spokane when the lumber arrived. His agent, one Powell, went to appellant and told him that the lumber had arrived, hut that there was no money with which to pay the freight charges. Appellant advanced $69.75 to pay said freight charges, and one carload of lumber was turned over to him, and also a portion of the other carload. Cohum was owing appellant at this time. He paid Coburn nothing for the lumber, excepting the $69.75 advanced for freight charges, hut gave him credit for $280 on the existing indebtedness.

Respondent alleged that Coburn was hopelessly insolvent at the time he ordered the lumber, and had no intention and no reasonable expectation of being able to pay therefor, and maintains that appellant knew, or should have known, of Coburn’s insolvent condition, and of the fact that he had not paid for said lumber. The value of the two carloads of lumber was $359.75. .The case was tried before the court without a jury and findings of fact and conclusions of law, and judgment for the return of the lumber, or for $280, in the alternative, were made and entered in favor of respondent. Appellant excepted to the principal findings of fact and contends that the judgment, from which he appeals, was erroneous.

The court found that Coburn was hopelessly insolvent, and concealed his insolvency from respondent, who had no knowledge thereof, and that he had no reasonable expectation of being able to pay for said lumber, and that he bought it with fraudulent intent not toi pay for the same, and found that appellant parted with nothing of value iu consideration of getting said lumber. The decision of the case must turn largely upon the intent of Cohum and the knowledge, actual *591or constructive, of appellant of the circumstances involved. These were questions of fact depending upon the evidence. It would probably serve no good purpose to analyze and discuss the evidence adduced. While it is not as satisfactory as might be desired, nevertheless, we think it sustains the material facts found by the trial judge, and was sufficient to sustain the judgment with the following exception. The $69.75 freight bill was a charge which it was necessary to pay before Cobum or appellant or respondent could get possession of the lumber from the railway company. We do not think that respondent was entitled to be placed in a better position than he would have been had appellant not taken the lumber. The latter having been transported from Valley to Spokane, the respondent had the benefit of this transportation, which rendered the lumber* that much more valuable where delivered.

The case will be remanded to the superior court with the following instructions: If, within thirty days from the date of the filing of the remittitur, the respondent shall pay into the registry of the court for the benefit of the appellant the sum of $69.75, then the judgment of the lower court shall stand affirmed. If said amount is not so paid within said time, then the superior court shall enter an order and judgment dismissing the action. Said deposit of $69.75 shall not be delivered by the clerk of the court to appellant until the lumber shall have been delivered to respondent. If said lumber has been removed or in any manner dissipated so that the same cannot be delivered to respondent, the latter may withdraw the $69.75, giving appellant credit for said amount upon the judgment of $280, as entered by the superior court. Heither party shall recover costs in this court.

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