Bering Mfg. Co. v. W. T. Carter & Bro.

• Court: Texas Court of Appeals
• Writing for the Court: O'Quinn
• Citation: Bering Mfg. Co. v. W. T. Carter & Bro., 255 S.W. 243 (Tex. App. 1923)
• Decision Date: 19 October 1923
• Docket Number: (No. 915.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: BERING MFG. CO. v. W. T. CARTER & BRO.

255 S.W. 243

BERING MFG. CO. v. W. T. CARTER & BRO.

(No. 915.)^*

Court of Civil Appeals of Texas. Beaumont.

October 19, 1923.

Rehearing Denied October 31, 1923.

Appeal from District Court, Polk County; J. L. Manry, Judge.

Action by W. T. Carter & Bro. against the Bering Manufacturing Company. Judgment for plaintiffs, and defendant appeals. Reformed and affirmed.

Carothers & Brown, of Houston, for appellant.

Baker, Botts, Parker & Garwood, of Houston, and Feagin, German & Feagin, of Livingston, for appellees.

O'QUINN, J.

On May 17, 1907, appellant was a corporation organized under the laws of the state of Texas, with its principal office in the city of Houston, Harris county, Tex., but was engaged in operating a sawmill for the manufacture of lumber at Bering, in Polk county, Tex. Appellees constituted a partnership, and were also engaged in the manufacture of lumber at Camden, Polk county, Tex. Bering Manufacturing Company owned a number of tracts of land situated a considerable distance from its sawmill and its tramroad, with intervening tracts of land that it neither owned nor controlled, and across which it could not obtain a tramroad right of way. The appellees also owned various timbered tracts of land, and the timber on other tracts situated at considerable distance from its plant, but near to and easily accessible to appellant's tram. On said date the said Bering Manufacturing Company was about out of timber accessible to it, and, upon its solicitation, appellees, W. T. Carter & Bro., entered into an exchange of timber with it, as follows:

"The State of Texas:

"This contract, made and entered into by and between W. T. Carter & Bro., a firm composed of W. T. Carter, Earnest Carter, and Jack Thomas of the first part, and the Bering Manufacturing Company, duly incorporated under the laws of this state, its principal office at the city of Houston, of the second part, witnesseth:

"(1) Each party to this contract grant to the other party a right of way over all land owned by said parties, for tramroad and railroad purposes of the width of 50 feet, and to a greater width where it is necessary in building a tramroad or railroad, to use dirt or sand in construction. This right of way extends to and for the benefit of the Bering, Kiam & Southern Railroad, a majority of whose stock is owned by the party of the second part hereof.

"(2) The party of the second part is to convey to the party of the first part the pine timber owned by said party on the following tract of land, to wit:

"J. S. Gilliland, J. Wrigley, C. Devore, the N. E. 1/4 of the James Simmons, George Allen, Seth Batson, H. Schroder, John Warden, F. C. Bering, Houston & Texas Central Railway section 28; J. Butler, F. Prentiss, Thomas Waring, B. F. Waring, F. G. Waring, L. Castillian, G. Arrango. (The Schroder, Batson, F. G. Waring and the G. Arrango are situated partly in Tyler county. The other tracts are situated in Polk county.)

"(3) The party of the first part is to convey to the party of the second part the pine timber owned by said party on the following tracts of land, to wit:

"M. S. Womack league (west of Bear creek), M. S. Parker, Robert Oates, Joseph Gassiott, A. Lott, J. J. Cannon, W. I. Hanley, B. F. Ellis, M. Tanner, R. Wilborn, I. D. Thomas league, J. D. Blair, H. H. Cone league, I. H. Pate league, M. Swinney, said tracts situated in Polk county.

"(4) The party of the second part is not to buy timber south of a line drawn east and west from the north corner of the Escobeda league.

"(5) The party of the first part is not to buy timber west of Bear creek from the north corner of the Escobeda league up to a point where Bear creek strikes the northeast line of the Womack league, and from thence with the northeast line of the Womack league to the northeast corner of the Womack league. From thence north from the north corner of the Womack league to the R. W. Russell survey, thence westerly to southeast corner of John Dickenson league. The party of the first part is not to buy timber west and south of the boundaries here given, and the party of the second part is not to buy timber east and north of said line.

"(6) Either party can buy land and timber west of the H. E. & W. T. Ry.

"(7) The party of the first part in conveying by deed the pine timber embraced in this contract to the party of the second part is to warrant the title to the timber so conveyed; provided, however, that where the timber so owned is for a limited time, then the time limited is to be shown by the conveyance, and, provided further, that whatever rights the party of the first part owns in and to the timber so conveyed is to be transferred to the party of the second part.

"(8) The party of the second part in conveying by deed the pine timber embraced in this contract to the party of the first part is to warrant the title to the timber so conveyed; provided, however, that where the timber so owned is for a limited time, then the time limited is to be shown by the conveyance, and provided further, that whatever rights the party of the second part owns in and to the timber so conveyed is to be transferred to the party of the first part.

"(9) The pine timber provided by this contract to be conveyed by the party of the second part to the party of the first part will be first scaled and measured as hereinafter provided, and the full amount computed and ascertained as provided in this contract. When this is done, the timber provided to be conveyed by the party of the first part to the party of the second part will also be scaled and measured as hereinafter provided, and the full amount computed and ascertained as provided by this contract. Then when this is done, whatever amount of pine timber is found to belong to the party of the second part, an equal amount of pine timber belonging to the party of the first part will be conveyed to the party of the second part; this contract being an exchange of pine timber by and between the parties in equal proportions as herein stated, and it is not intended by this contract that the party of the first part shall convey to the party of the second part any more in feet than is conveyed by the party of the second part to the party of the first part hereunder.

"(10) In measuring the pine timber belonging to the party of the first part to be conveyed to the party of the second part, the timber in exchange nearest to the mill of the party of the second part is to be conveyed by the party of the first part, so that the timber conveyed by the party of the first part to the party of the second part in exchange will be nearest the mill of the party of the second part.

"(11) The deeds herein provided are to be legally executed, and the timber transferred as herein provided so soon as the timber can be scaled and measured and the amounts ascertained upon which this exchange is made.

"(12) The party of the second part in consideration of the exchange of timber and the rights and privileges embraced and included by the terms of this contract is to pay the party of the first part $12,500.

"(13) The pine timber to be scaled and measured under and by the terms of this contract will be done by two men to be agreed upon by the first and second parties hereto. If either party at any time during the scaling and measuring of the pine timber herein provided becomes dissatisfied with either or both of the scalers, the scaling and measuring shall at once stop, and the parties shall agree upon another scaler or scalers to take the place of the scaler or scalers so discharged by the terms of this contract, and this process shall continue during the entire time of scaling and measuring.

"(14) The pine timber to be scaled and measured, under and by the terms of this contract is to be scaled, measured, and computed by the scale of W. T. Carter & Bro., a copy of which is furnished by the party of the first part to the party of the second part, and with which the party of the second part is already advised.

"(15) The party of the second part is to convey by warranty deed to the party of the first part the William Sloan tract of land of 415.5 acres and 333 acres of the Sina Runnels league of land, bought from the Leon & H. Blum Land Company by F. C. Bering for the same amount of money that was paid for said land by the party of the second part or by F. C. Bering, together with interest thereon at 6 per cent. per annum from the date of purchase until the date of this contract. The Sloan tract was not purchased from Blum, but this applies to that tract and for the amount paid therefor by F. C. Bering the vendee.

"(16) It is agreed by and between the parties to this contract that in case either party shall buy timber in that locality set apart for the other party, then the purchaser shall pay to the other party as contractual damages the manufacturer's profit on whatever amount of timber that is so purchased by said party.

"(17) That part of this contract set forth in paragraphs 4, 5, and 6, limiting the territory in which the parties are to purchase land and timber shall expire whenever either of the plants the said parties are now operating shall permanently cease to do business.

"(18) It is further understood that nothing in this contract is to interfere in any way with the pending exchange of timber between said party of the first part and the Livingston Lumber Company by which the said party of the first part is to acquire that part of the H. H. Cone survey now owned by said Livingston Lumber Company, and said Livingston Lumber Company is to acquire the P. Whittaker, B. Townsend, and a part of the I. H. Pate surveys now owned by said party of the first part.

"Witness our hands this the 17th day of May, A. D. 1907. W. T. Carter & Bro., by W. T. Carter. Bering Manufacturing Co., by F. C. Bering, Secretary. [Seal.] Bering Mfg. Co., per Conrad Bering, President."

Out of this contract grew the present controversy. Appellees sued appellant...