Barnes v. Binion
| Decision Date | 31 March 1888 |
| Citation | 80 Ga. 691 |
| Court | Georgia Supreme Court |
| Parties | McCurdy & Barnes. vs. Binion. |
Charge of the court, Contracts. Conduct of cause Before Judge Richard H.Clark. Dekalb superior court, August term, 1887.
Abraham Binion sued McCurdy & Barnes, alleging that they agreed to cut, saw up and market from his land all the trees suitable for lumber, and pay him in cash $1.25 per hundred for one-half of the square pine lumber obtained therefrom and half the gross proceeds of the sale of the balance at a fair market price, payments to be made as the lumber was taken from the land; and that they went on the land, sawed up 228 trees and sold the lumber for sums the exact amount of which he was unable to state, but alleged to be $1,200, which (except $69) is unpaid.
The defendants pleaded that the contract really was, that they were to saw the timber for one-half the lumber made, which they had done until the work was stoppedby Binion, when they left on the premises the half due him; that they had incurred large expenses in view of the plaintiff\'s promises that they might cut the timber on about 500 acres of land; and that the plaintiff had stopped their work when they had cut only a portion of the most inferior timber, damaging them to the extent of $2,000, which they pleaded by way of recoupment.
On the trial, the plaintiff showed that the defendants had agreed to pay him $1.25 per hundred; that they had sawed about 220 trees, but had paid him only $69 and refused to pay more; that at various times, one of the defendants stated to a third person that the contract was as alleged by the plaintiff; that the commencement of the cutting had been entered in a book (which was introduced in evidence), showing about 220 trees of various dimensions; and that a lien foreclosed by the plaintiff on the lumber had been levied on it by the sheriff while it was left on the land, but no sale was made, defendants having contested the claim of lien.
Defendants evidence was in direct conflict with that of the plaintiff as to the contract, supporting their plea on this point. It showed that about 100, 000 feet of lumber had been cut, and of the 50, 000 feet allotted to plaintiff about eight or ten thousand had been sold by them for him under agreement, and the proceeds ($83.00) had been paid to him; that plaintiff stated he wanted one of defendants to sell his part, which they proceeded to do at the market price, until plaintiff complained, asserting that he should be paid $1.25 for his lumber, and he was told that this could not be obtained, and he had better take his lumber himself, which he refused to do; that 42, 000 feet had been left on the land for plaintiff, he having refused to take it; that the lumber was worth from 80 cents to $1.00 per hundred, the very best quality being worth more; and that they had been allowed to cut only a small part of the timber, and had been induced by their contract to incur large expenses.
The defendants also introduced an affidavit for the foreclosure of a lien, under §1985 of the code, made by plaintiff, upon defendants\' saw-mill and its products, for the indebtedness sued for in this case, with the execution issuing thereon, and its levy on 41, 000 feet of lumber sawed, and a counter-affidavit of defendants denying the lien and the indebtedness.
The jury found for the plaintiff $336.00 and interest. The defendants moved for a new trial on the grounds set out in the decision, which motion was overruled; and exception was taken.
Mynatt & Garter, for plaintiff in error.
Candler, Thomson & Candler, contra.
Binion obtained judgment against McCurdy & Barnes; whereupon they moved for a new trial, which was refused, and they excepted.
1. The first assignment of error is, that the court charged:
"If the jury believe that defendants entered on plaintiff's land and sawed an amount of timber into lumber of certain value, and have not paid plaintiff for it, plaintiff is entitled to a verdict, unless plaintiff has violated his contract with the defendants, as a consequence of which they had a claim of recoupment against him."
This is assigned as error because the difference between the parties was as to the price at which his lumber was to be sold, and because the charge assumed that the defendants were to pay for it at some price; while their evidence was that they were to sell at the market price, which plaintiff refused to let them do, which left the title to the lumber in the plaintiff.
After examination of the record in this case, we think this charge did no harm and we cannot say that it does not state the law correctly. We do not think the plaintiffin error can take anything by this ground of the motion.
Another charge complained of is the following:
" It matters not what the jury find the contract to have been, if they are satisfied the defendants owe the plaintiff on it, unless defendants have a claim of recoupment in the manner stated; if plaintiff is entitled to recover, and there is no set-off, plaintiff would be entitled to recover in dollars and cents." This is...
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