Biggers v. Matthews

• Citation: 61 S.E. 55,147 N.C. 299
• Parties: BIGGERS v. MATTHEWS.
• Decision Date: 08 April 1908
• Court: United States State Supreme Court of North Carolina

61 S.E. 55

147 N.C. 299

BIGGERS v. MATTHEWS.

Supreme Court of North Carolina

April 8, 1908

Appeal from Superior Court, Union County; E. B. Jones, Judge.

Action by J. A. Biggers against N. S. Matthews. Judgment for defendant, and plaintiff appeals. Affirmed.

Defendant sold the standing timber on his land, and plaintiff contracted with the purchasers to saw the same into lumber. After plaintiff had taken his mill to the land and begun sawing, defendant repurchased the interest of one of the purchasers in the timber, and took an assignment thereof with intent to prevent plaintiff sawing the timber, and forbade plaintiff sawing it, and obtained an injunction restraining the other purchaser and his employees from sawing it. Held, in an action for damages, that the contract with plaintiff was not a covenant running with title to the timber, and defendant had a legal right to forbid the sawing thereof; and, having such right, his intent was immaterial.

A. M Stack, for appellant.

Robinson & Caudle, Stevens & Love, and Williams & Lemmond, for appellee.

CONNOR J.

The pleadings disclose this case. The defendant, Matthews, on December 22, 1905, entered into a contract, in writing, with Gordon and Smith, which, as contended by plaintiff, may be interpreted to constitute sale of certain standing timber on his land, at the price, and upon the terms, set forth therein. Plaintiff, on January 3, 1906, contracted with Gordon and Smith to saw the timber into lumber, receiving, as compensation therefor, 30 cents per 100 feet. Pursuant to the terms of his contract, plaintiff carried his sawmill, engine and boiler to defendant's land, upon which the timber was standing, and began to saw it into lumber. Defendant, on February 5, 1906, after the plaintiff had carried his mill to the land and begun sawing, having knowledge of plaintiff's contract with Gordon and Smith, took an assignment from Gordon of his interest in the timber, and forbade plaintiff sawing the same into lumber. His purpose in taking said assignment from Gordon was to prevent plaintiff from continuing to saw the timber and performing his contract. Defendant, on September 13, 1906, sued Smith, and obtained from the court an injunction restraining him and his employés from sawing said timber. Plaintiff was not a party to this action. Plaintiff alleges that defendant took said assignment, and sued out said injunction, for the purpose of preventing him from sawing the timber under his contract with Gordon and Smith. The foregoing are the material facts in the case. His honor, being of the opinion that upon the pleadings plaintiff was not entitled to maintain the action against defendant for damages sustained by reason of the breach of contract, rendered judgment for defendant, to which plaintiff excepted and appealed.

While it is not clear, it may be, for the purpose of disposing of this appeal, conceded, as contended by plaintiff, that the contract between Gordon, Smith, and defendant constituted a sale of the timber, to be paid for at the price named, as it was cut. Plaintiff acquired no title to or interest in the timber by his contract with Gordon and Smith. The agreement between them was an executory contract, in the nature of an employment whereby plaintiff was to saw the timber and receive, as compensation, 30 cents per 100 feet. A similar contract to cut cord wood was considered by us in Ives v R. R. Co., 142 N.C. 131, 55 S.E. 74, 115 Am. St. Rep. 732. Mr. Justice Walker, at page 134 of 142 N. C., page 75 of 55 S.E. (115 Am. St. Rep. 732), said: "The contract was not for the sale of standing trees, but *** for the conversion of trees growing on defendant's land into cord wood, and the delivery of the same on the defendant's right of way. It was not contemplated by the parties that there should be a transfer of any title to or interest in the trees as they stood upon the land." We can perceive no reason why Gordon could not assign, and the defendant purchase, his interest in the timber, free from any liability on the part of defendant to carry out Gordon's executory contract with plaintiff. It was a personal obligation on the part of Gordon, and not a covenant running with his title to the timber. He did not assign the contract with plaintiff, but the timber. We can perceive no difference, as to the principle involved, between this case and one in which the owner of a lot had contracted with a builder to erect a house thereon, and thereafter sold the lot, or one in which the owner of a farm had contracted with a superintendent for a year, and during the time sold the farm. In neither case does the purchaser come into any contractual relation with or obligation to the person with whom the owner has contracted. For any damages sustained by the builder or the superintendent, by the sale of the property, the owner, with whom he contracted, is liable. If the owner has made a lease or granted an easement or made a covenant real, which runs with the land, the purchaser takes the title cum onere, and, of course, is liable for a disturbance, or breach, as the case may be. ...