Battell v. Matot

• Decision Date: 18 July 1886
• Citation: 5 A. 479,58 Vt. 271
• Parties: BATTELL v. MATOT. MATOT v. BATTELL and another, Adm'r.
• Court: Vermont Supreme Court

5 A. 479

58 Vt. 271

BATTELL

v. MATOT.¹

MATOT

v. BATTELL and another, Adm'r.

Supreme Court of Vermont.

July 18, 1886.

Bill in chancery.

The cause and cross-cause were heard on a master's report, December term, 1884, Addison county; Veazey, Ch. Decree pro forma, and that the orator is entitled to a decree according to the prayer of his bill, and that the cross-bill of said Matot be dismissed.

The bill was sworn to July 21, 1882, and avers that on June 7, 1882, one Tread way was the owner of 138 1/2 acres of land situated in Middlebury, and conveyed the same to the orator; that upon a considerable portion of said land is a growth of trees suitable for wood, etc.; that "said land adjoins the home premises of the orator, and from its location, and the growth of trees upon it, considerably enhances the beauty, attractiveness, and value of the orator's homestead; that said John Matot and said Treadway, some time in the spring of 1882, and previous to said conveyance, entered into a verbal contract, which was never reduced to writing in any form, whereby the said Treadway sold, or agreed to sell, to the said Matot all the standing trees, wood, and lumber on said land, to be removed within two years, for the sum of $1,400, to be paid therefor by said defendant, and the payment of which was to be secured in some way by the said defendant. As to the precise method of security the orator cannot positively say, though he is informed and believes that it was to be by some sort of a guaranty from the Central Vermont Railroad Company, to which it was contemplated, at the time of said sale from Treadway to the defendant, the wood so to be taken from said land would be delivered by the defendant; of which the orator had notice previous to his purchase of said land." It also avers that "the defendant had cut about 200 cords of wood on said land; that he claims, under said contract, to be the owner of the wood and standing trees on the land; that he is insolvent; that if he should cut the rest of the trees the injury would be irreparable to the orator; that said contract, even if proper security for the payment of the $1,400 had been furnished, invests the defendant with no title to or legal interest in the trees uncut and standing upon said land, but the orator is informed and believes that defendant, though often requested, has never furnished the security agreed upon, and the orator so understood when he purchased from Treadway; that at the time of said conveyance, and as part of the same transaction, Treadway assigned to the orator his interest in said contract, and the orator bound himself, in substance, to indemnify Treadway against all damages resulting from said assignment." The prayer was for an injunction restraining the defendant, his servants, etc., from cutting the growing timber on said land. A temporary injunction was granted by Chancellor Taft, August 7, and served August 10, 1882.

The answer, filed November 4, 1882, admits that Treadway owned said land, and conveyed it to the orator on June 7, 1882; and avers that the defendant, about April 1, 1882, entered into a contract for the purchase of said wood or trees, in substance as follows: Defendant was to pay Treadway $1,400 for all the trees on said lot, with the right to cut and remove the same within two years,—the payment to be secured by the retention by the railroad company of $1.50 per cord, to be paid to Treadway until said $1,400 were fully paid; that defendant obtained from the wood agent of the railroad company a letter which he delivered to Treadway, and which was satisfactory to him, so far as defendant knew; that Treadway was in poor health, and the contract was not, at the time, reduced to writing, but Treadway retained the letter, and directed defendant to proceed with his cutting, etc., which defendant did, relying on said verbal contract, and the promise of Treadway to execute a written contract, and continued his work until enjoined, June 9, 1882; that the contract was a valuable one; that when the orator took his conveyance he had notice of said contract, and that defendant was in possession; that the orator attempted to purchase the defendant's rights under the contract; that he indemnified Treadway against defendant's claims; that he received said letter from Treadway, and became entitled to said $1,400 to be paid by defendant. It also avers that defendant understands that the orator claims said contract to be void under the statute of frauds, and that he purchased with a view of asserting such claim; but says that it is not; and, if otherwise held, claims that the instruments of conveyance and indemnity constitute a sufficient written memorandum to satisfy the requirements of the statute; and, if otherwise held, claims to be entitled to assistance of court to have proper writing executed; claims the right to continue cutting said trees; and avers that he made a contract with said railroad company which secured said $1,400 to Treadway in the manner agreed upon, which was all the security Treadway ever demanded, and which was available to the orator; that on June 8, 1882, the orator brought a bill in this court against defendant, complaining and praying substantially as in his present bill; that he obtained an injunction thereon from Chancellor Veazey; that the same was served on defendant; that defendant made answer substantially as now, and on July 4, 1882, moved to dissolve said injunction, which motion was granted; that, when the bill in the present case was served, a notice of the discontinuance of the former case was also delivered to defendant, but no order of discontinuance has ever been made, and the said former case is still pending, and is a bar to the present suit.

John Matot brought a cross-bill at the December term, 1883, against said Battell and Freeman G. Wright, administrator of said Treadway's estate. The averments in the cross-bill were substantially like those in his said answer. The prayer was for specific performance, for injunction, and for damages. At the June term, 1883, the defendant made a motion to dissolve the injunction granted by Chancellor Taft, and that the orator be ordered to file in court his former bill of complaint. The court overruled that part of the motion relating to the dissolution of the injunction, and overruled that part of the motion relating to the former bill on terms as to costs. The costs were paid, and the suit was not entered.

The master found that said Treadway in March, 1882, owned said land, that Matot had for many years been engaged in getting out wood for the railroad; that about this time he saw N. F. Clark, wood agent for the railroad, respecting the sale and delivery to the railroad of the wood on this land; that nothing definite was agreed upon except the prices to be paid, provided defendant could make satisfactory arrangements for purchase with Treadway. Shortly afterwards, Matot made an oral contract with Treadway to purchase of him all the standing trees on said lot, to to be removed within two years, for the price of $1,400; and, as Matot was poor and financially irresponsible, it was agreed between him and Treadway that the payment of the $1,400 should be secured; and, as it was expected and understood by them that said wood was to be sold to said railroad company, it was arranged between Matot and Treadway that the payment was to be secured by the written obligation or guaranty of the Central Vermont Railroad Company, or its proper officers, to be secured by said Matot, binding that company to pay to Treadway, as Matot delivered wood to it, $1.50 per cord until said sum of $1,400 should be paid. Matot thereupon, and prior to April 14, 1882, orally agreed with said Clark (who was authorized to make wood contracts in behalf of said company) to sell and deliver to said company, along the line of said road, all of the wood on said land, not excepting any logs or lumber, at the price of $3.50 per cord for hard wood, and $3 per cord for soft wood, the company to advance to him the money to pay wages of choppers, and to pay directly to Treadway $1.50 per cord for whatever wood he should deliver, till Treadway should receive $1,400, as above stated; and it was expected and understood by all parties that the agreement between Treadway and Matot should be reduced to writing, but it never was. Shortly previous to April 14, 1882, Matot wrote to Clark requesting him to come down, and execute a written contract, according to previous understanding, but, as Clark could not then attend to it, he wrote the letter of April 14th, which is hereto appended. This letter, received by Matot, was by him promptly delivered to Treadway who retained it until the time of the subsequent sale to Battell, hereinafter mentioned, when it came into the possession of Battell.

This letter is the only paper relating to security ever furnished by Matot to Treadway. That part of Mr. Clark's letter bearing upon this case is as follows:

"In reply, say I will meet you as soon as I can, but cannot now name the clay. Do not think I can possibly meet you before week after next, but you can go along, as we fully understand the trade, I think; and just as soon as I can possibly meet you I will do so, and have it put in contract. I don't see but what you can commemce at once, and I will bill to Mr. Treadway, as you directed," etc.

The letter is dated April 14, 1882.

Directly after, Matot commenced cutting, employing a gang of men and teams, and continued work on the lot until served with an injunction order in the suit first hereinafter mentioned, on June 9, 1882. At that time he had cut upwards of 200 cords of wood, 16,000 feet of bass saw-logs, and 6,000 feet of hemlock saw-logs, and 300 railroad ties, and had peeled some hemlock bark,—of all which he has had the benefit. Matot expected to make from $2,000 to $3,000, and possibly more, from the arrangement, and from all that appeared in evidence his...