Blackstone Mfg. Co v. Allen

• Citation: 117 Va. 452,85 S.E. 568
• Parties: BLACKSTONE MFG. CO. v. ALLEN.
• Decision Date: 10 June 1915
• Court: Virginia Supreme Court

85 S.E. 568

117 Va. 452

BLACKSTONE MFG. CO.

v.ALLEN.

Supreme Court of Appeals of Virginia.

June 10, 1915.

Error to Circuit Court, Lunenburg County.

Action by L. E. Allen against the Black-stone Manufacturing Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

The court gave the jury the following instructions:

1. The court instructs the jury that its duty is to determine all questions of fact, but that it is the exclusive duty of the court to construe the legal effect of instruments in writing; and that the court construes the deed offered in evidence in this case and made by and between the plaintiff and defendant, as follows:

(a) That said instrument is a conditional sale of such standing timber on the tract of land described in said instrument as is cut and removed before the expiration of seven years from the date of said instrument.

(b) That the foregoing section of this instruction is subject to the qualification as to whether or not the defendant obtained au extension beyond the period aforesaid in said instrument.

(c) The court instructs the jury that the plaintiff in this case may, if he so wishes, waive the payment of said yearly interest, both as to time and amount, but that said waiver must be established by the evidence in this case, and the only evidence submitted in this case with respect thereto upon which the court must pass consists of certain written letters which passed between the plaintiff and the defendant, and the court construes those letters as insufficient to establish a waiver either of the time of the payment of said yearly interest or of the amount thereof.

2. The court instructs the jury that if they believe from the evidence that there was any standing timber remaining on the tract of land in question at the expiration of the seven years period mentioned, and the extension period had not been acquired, such standing timber was on the 3d day of February, 1913, and thereafter, the property of the plaintiff.

3. The court instructs the jury that it construes the said instrument with respect to the extension to be in the naure of a condition precedent, and that it was the duty of the defendant in order to avail itself of the said extension period, or any part thereof, to have tendered to the plaintiff the yearly interest provided for in said instrument, on or before the 2d day of February, 1913.

4. The court instructs the jury that such timber as was cut down and cither lying in place or hauled to the mill on the same premises, but remained in the form of logs, prior to February 3, 1913, was and remained the property of the plaintiff.

5. The court instructs the jury that as to such timber as was cut after February 3, 1913, it is immaterial whether it was hauled to the mill, whether it was sawed into lumber, or whether it was removed from the premises; for in either event the court instructs the jury that said timber was and remained the property of the plaintiff.

6. The court instructs the jury that it was the duty of the defendant to have cut and removed the timber from the premises described in the deed here in question, before acquiring absolute title thereto; and if the jury believe from the evidence in this case that the defendant cut down, sawed, or manufactured timber into lumber, which lumber was sawed or manufactured, although cut prior to February 3, 1913, and remained on the premises on February 3, 1913, then in that event the defendant acquired no absolute title to such lumber, but that the same was the property of the plaintiff.

7. The court instructs the jury that under its construction of the deed in question it construes, and so determines, that the defendant acquired title to only such timber as was cut and removed from the premises prior to February 3, 1913; that the conditions "cut and removed" are imperative, and that manufacturing or sawing the said timber into lumber "fore" February 3, 1913, will not comply with, and cannot be substituted for, the condition of removal found in said deed, if the jury believe from the evidence that said sawed lumber remained upon the promises until after February 3, 1913.

8. The court instructs the jury that if they find from the evidence in this case that any timber was standing on the said premises on or after February 3, 1913. as hereinbefore instructed the said standing timber was and remained the property of the plaintiff, and that the cutting, hauling, manufacturing, or sawing of such timber will not affect the ownership of said timber, and will not put title thereto into the defendant.

9. The court instructs the jury that there is a count in the declaration of the plaintiff alleging damage to the realty caused by the cutting and hauling of the timber uncut on February 3, 1913: that the only evidence in the record concerning the amount of this damage is that it was $25 or $30, and this evidence is undisputed; and if the jury believe from the evidence that this statement is true they shall find for the plaintiff on this count.

10. The court instructs the jury that if they believe from the evidence that there was any manufactured lumber lying upon the premises in question on February 3, 1913, and if any timber was sawed or manufactured thereafter, the jury are reminded of instructions Nos. 2, 4, 5, 6, 7, and 8, to the effect that the said lumber was and remained the property of the plaintiff; and if the jury find from the evidence that the sawed lumber was taken and carried away by the defendant, its agents or employes, they, the jury, are instructed that the measure of damages in the event of such taking and carrying away shall be the value at the time of the said taking and carrying away.

11. The court instructs the jury that in no event are they to find damages for the plaintiff in a sum exceeding $5,000.

W. Moncure Gravatt, of Blackstone, and E. P. Buford, of Lawrenceville, for plaintiff in error.

McNeill, Hudgins & Ozlin, of Richmond, for defendant in error.

CARDWELL, J. This action grows out of a contract for the sale of standing timber, and the declaration filed by the plaintiff, L. E. Allen, against the defendant, Blackstone Manufacturing Company, contains five counts. Upon the issue joined on the plea of the defendant of not guilty there was a trial, resulting in a judgment of the court on the verdict of a jury in favor of the plaintiff awarding damages in the sum of $1,500. To that judgment this writ of error was allowed the defendant.

We do not deem it necessary to undertake to discuss seriatim the 18 assignments of error contained in the petition for this writ of error.

The case is as follows: On February 2, 1906, defendant in error (plaintiff below) and his wife executed to plaintiff in error (defendant below) a deed conveying to the latter, in consideration of $3,001 (the $1 apparently having been paid as earnest money) "all of the standing timber" on a certain tract of land owned by the grantors, containing 150 acres, situated in Lunenburg county, which deed contains the following clause:

"The said Blackstone Manufacturing Company shall have the period of seven years from date of this deed within which to cut and remove said standing timber, and after the expiration of the said years, they shall have an additional period of three years, or so much thereof as they may desire, for cutting and removing said timber: Provided they pay to the said parties of the first part * * * the yearly interest on the purchase price of the above-described timber."

The alloted period of seven years mentioned in the deed for cutting and removing the timber expired on February 2, 1913, and during that period plaintiff in error commenced, but did not complete, the cutting, manufacture, and removal, and according to the facts appearing in this case, which are practically undisputed, at the expiration of the seven-year period some of the timber was still standing, some had been cut down and was lying where felled, some had been cut down and hauled to a mill on the same premises, but not removed therefrom; some had been cut down, hauled to the same mill, there manufactured into boards, planks, posts, etc., but not removed; and all the timber standing at the expiration of the seven-year period or cut as above set forth was removed after February 3, 1913; i. e., plaintiff in error, putting its own construction upon the extension clause of said deed, and without notice or consultation with defendant in error, proceeded to complete the severance of the remaining standing timber and to manufacture it, as well as the logs which had been hauled to its sawmill, before February 3, 1913, into merchantable form, and all of this lumber when so manufactured was hauled to a lumber yard or planing mill at the railway station at Kenbridge, and there piled together and indiscriminately mixed and intermingled with other lumber of like kind and nature, which latter lumber came from other sources and belonged to plaintiff in error; and that lumber, from this commingled mass, was sold from time to time by plaintiff in error and shipped f. o. b. from Kenbridge for its own account and benefit.

After the severance and manufacture of all the timber had been completed, but before all of the manufactured products had been removed from the sawmill premises situated on defendant in error's land, he, on March 19, 1913, addressed a letter to plaintiff in error calling its attention to the fact that the seven-year period provided in the said deed or contract for the cutting and removal of the...