Smith v. Moncrief

• Decision Date: 13 October 1982
• Docket Number: No. 82-156,82-156
• Parties: Paul G. SMITH et al., Plaintiffs-Appellees, v. W.A. MONCRIEF, et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 1127

421 So.2d 1127

Paul G. SMITH et al., Plaintiffs-Appellees, v. W.A. MONCRIEF, et al., Defendants-Appellants.

No. 82-156.

Court of Appeal of Louisiana,

Third Circuit.

Oct. 13, 1982.

Rehearing Denied Dec. 2, 1982.

Writ Denied Feb. 4, 1983.

Seago, Patrick & Carmichael, John E. Seago, Baton Rouge, for defendants-appellants.

Michael J. Johnson, Cottonport, for plaintiffs-appellees.

Before CULPEPPER, GUIDRY and LABORDE, JJ.

GUIDRY, Judge.

In this suit plaintiffs, David Allen Ducote, Sr., (hereafter Ducote) and Paul G. Smith (hereafter Smith) seek to recover from defendants, Richard H. Friedberg, W.A. Moncrief, Sr., Elizabeth Moncrief, W.A. Moncrief, Jr., and Deborah Moncrief (hereafter Friedberg-Moncrief), the sum of $45,870.30, which sum is allegedly due plaintiffs under certain contractual stipulations set forth in acts of sale by Friedberg-Moncrief to Ducote and Smith. Following institution of suit, L.J. Bonial Jr., Glenn Ducote and Raymond Plauche were joined as parties plaintiff.

FACTS

By deed dated May 13, 1977, Richard H. Friedberg, W.A. Moncrief, Sr., Elizabeth Moncrief, W.A. Moncrief, Jr., and Deborah Moncrief acquired from Roy O. Martin Lumber Company, Inc. several large tracts of land situated in the Parishes of Avoyelles and St. Landry, Louisiana. In the act of transfer, Roy O. Martin Lumber Company, Inc. (hereafter Martin) reserved unto itself all growing timber and timber products located on the said property together with the right to remove such timber and timber products during a time specified in an agreement styled "Cutting Period Agreement" simultaneously executed by the parties. The agreement between Friedberg-Moncrief and Martin, insofar as this litigation is concerned, provides in pertinent part as follows:

"H. Martin and Martin Industries agree that as the cutting and removal operation of timber and timber products from the property shown on Exhibit A are completed, that such lands as to which cutting and removal operations are completed, shall be released from the timber reservation and removal provisions hereof (except those relating to or affecting access or ingress and egress to other Exhibit A property). Upon the commencement of clearing or preparation for cultivation of the said lands upon which cutting and removal are complete, Friedberg-Moncrief shall designate the location for exercise of rights of ingress and egress across the said lands, and except for such designated rights of passage, said lands shall be released from the access, ingress and egress rights provided herein. Martin and/or Martin Industries shall furnish written notice thereof upon completion of cutting and removal operations from each 160 acres completed. Martin and/or Martin Industries shall within ten (10) days of the receipt thereof, sign appropriate release documents, prepared by and at the expense of Friedberg-Moncrief, suitable for filing in the public records when called upon to do so.

I. Friedberg-Moncrief do hereby grant to Martin and Martin Industries, their successors and assigns, for the period of removal of timber and timber products from the property shown on Exhibit A, the rights of ingress and egress to and from the said property and over and upon the said lands therein described, as may be necessary in connection with the cutting and/or removal of timber and timber products. Martin and Martin Industries shall further have the right to build bridges and remove same, to make roads over the property, to store timber and timber products on the property, and to perform all other activities in connection with the preservation and removal of the timber which are consistent with good forestry and timber management practices prevailing in the industry. This grant is subject to paragraph H above."

Subsequent to their acquisition of the aforementioned several tracts of land, Friedberg-Moncrief conveyed unto Ducote a 575.30 acre tract located in Section 17, T 2 S, R 6 E, in Avoyelles Parish, Louisiana, and unto Smith a 557.50 acre tract in Section 18, T 2 S, R 6 E, Avoyelles Parish Louisiana. The purchasers in each of these sales acknowledged the existence of Martin's timber rights on the property conveyed and agreed to accept the property subject to the terms and conditions of the timber contract between Martin and Friedberg-Moncrief. In the sales referred to, the vendors agreed to make certain payments to the vendees for the acreage conveyed so long as it remained encumbered by the timber contract in favor of Martin from and after certain stipulated dates. The portion of the Ducote sales agreement so providing reads as follows: ¹

"Sellers agree to pay on a semi-annual basis unto purchaser interest calculated at nine (9%) per cent per annum on Four Hundred Fifty and No/100 ($450.00) Dollars per acre which sum shall be prorated on a daily basis for all acreage which remains encumbered by the timber contracts in favor of Roy O. Martin after March 31, 1979. As the acreage is released from the timber contracts, the interest on that particular tract will be calculated on a daily basis, and sellers shall not be thereafter responsible to purchaser for interest thereon. Sellers agree that the tracts of land released from said timber contracts shall not be in less than forty (40) acre tracts. Purchaser shall be notified in writing of land being released from any timber contract and the interest charge paid by sellers shall cease on the released property upon the date notice to purchaser is received."

Subsequent to Smith's acquisition of the 557.30 acre tract, he conveyed the entirety thereof in divided portions to L.J. Bonial, Jr., Glenn Ducote, G.P. Smith and Raymond Plauche. ² In each of these sales the vendees acknowledged and agreed to all conditions and reservations contained in the act of sale from Friedberg-Moncrief to Smith. These latter sales contain no assignment by Smith to his vendees of his rights under the Friedberg-Moncrief sale to receive semi-annual payments during the period that the property sold was encumbered by the Martin timber contract.

Pursuant to the quoted stipulation contained in the aforesaid sales, Friedberg-Moncrief made semi-annual payments to Ducote and Smith on the entirety of the properties, Ducote having been paid through December 31, 1979 and Smith having been paid through June 30, 1980. Both Smith and Ducote concede that all payments due under the aforesaid agreement were made to them through the dates last specified; however, no payments were received by either after the specified dates. On August 25, 1980, Friedberg-Moncrief's attorneys gave formal written notice by certified mail to Smith and Ducote advising that all lands conveyed to them by Friedberg-Moncrief had been released from the timber cutting agreement encumbering such acreage. The formal notice referred to reads in pertinent part as follows:

"The above referenced land was encumbered by various timber reservations and cutting period agreements in favor of Royal (sic) Martin Industries, et al. This letter will serve to you as formal notice under the terms of the Act of Sale that said property has been released from the various timber cutting agreements encumbering this acreage. Thus, our responsibility to you for your interest in the future ceases immediately."

Contrary to this formal notice the record clearly reflects that on August 25, 1980 the Ducote and Smith properties had not been released from the timber contract by Martin nor had Martin completed its timber removal operations on such properties. According to the record Martin completed its timber removal operations on the Ducote tract in early September, 1980 and its operations on the Smith tract, except for ten (10) acres, in early December, 1980. Further, there is no documentary evidence in the record confirming that Martin ever executed a formal release of its rights under the timber contract as to the Smith and Ducote tracts. John Munsterman, Martin's forest manager, testified that a formal release of all of Martin's rights under the timber contract was executed and delivered to Friedberg-Moncrief on November 16, 1981; however, such release was not made a part of the record in this case.

On February 2, 1981, Smith and Ducote instituted this suit against Friedberg-Moncrief, defendants herein, seeking judgment in the amount of $45,870.30, said to be due them under contractual stipulations in the sales from Friedberg-Moncrief to Smith and Ducote. Friedberg-Moncrief filed answer generally denying the allegations of plaintiffs' petition. In further answer Friedberg-Moncrief urged that the property sold to Ducote and Smith had been cleared of all merchantable timber and under the terms of the timber contracts encumbering said land such lands had been automatically released therefrom when cleared. Defendants further averred that Smith and Ducote had been notified in writing of such release by certified letter dated August 25, 1980.

By motion and order dated July 31, 1981, L.J. Bonial, Raymond Plauche and Glenn Ducote were substituted as parties-plaintiff in lieu of Paul Smith. However, shortly thereafter, on August 18, 1981, by means of a subsequent motion and order, Paul Smith was reinstated as a party-plaintiff in these proceedings. Upon the joinder of L.J. Bonial, Raymond Plauche and Glenn Ducote, as parties plaintiff, Friedberg-Moncrief filed an exception of no right or cause of action urging, in effect, that such parties were without right to institute suit against Friedberg-Moncrief as there existed no privity of contract between them.

The trial court, in written reasons for judgment, concluded that (a) the demands of Bonial, Plauche and Ducote against Friedberg-Moncrief should be dismissed for lack of contractual privity; and, (b) the right of David Ducote and Paul Smith to semi-annual payments under the contractual stipulation contained in the respective sales to them continued until such time as formal written releases of...