Brewer v. Arantz
| Decision Date | 29 November 1899 |
| Citation | 26 So. 922,124 Ala. 127 |
| Parties | BREWER v. ARANTZ ET AL. |
| Court | Alabama Supreme Court |
Appeal from chancery court, Morgan county; William H. Simpson Chancellor.
Bill by J. B. Brewer against George Arantz and Frank Arantz. From a decree in favor of defendants, plaintiff appeals. Affirmed.
The original bill in this case was filed on October 25, 1895, by the appellant against the appellees, for the purpose of enjoining the sale of certain specifically described lands under a power contained in a mortgage executed by the complainant to the defendants on May 9, 1895. The real estate was advertised for sale by defendants on October 20, 1895 and was to be sold on October 26, 1895. The bill avers that said mortgage was executed to secure the payment of three promissory notes executed by complainant to defendants May 9 1895, for the sum of $166.66 2/3 each, said notes falling due on the 9th days of June, July, and August, respectively, in the said year, 1895; that said notes were executed for a lot of poplar saw logs purchased by complainant from defendant May 9, 1895. The bill further avers that defendants falsely represented to complainant at the time of the sale of said logs that they were sound, except as to the sap, and would make good lumber; that complainant, relying upon their representations, knowing defendants were skilled and experienced lumber and log men (they having been for years engaged in the sawmill business, cutting and dealing in lumber, and complainant being without any experience in such business), trusted to and relied upon the skill, experience and representations of defendants, in making the purchase that after said purchase complainant hauled some of the logs to his sawmill (he having recently embarked in the business of sawing and cutting lumber for the market), and had said logs, or a portion of them, sawed into lumber, and the lumber stacked in his lumber yard; that complainant negotiated a sale of said lumber to the Thomas Lumber Company, of Memphis Tenn., which company sent out an inspector for the purpose of inspecting said lumber, who, after inspecting said lumber, found it to be worthless, and refused to carry out the proposed purchase, for the reason that the lumber was unmarketable and worthless by reason of the defects and unsoundness of the logs; that by reason of the false representations made by the defendants to the complainant that said logs were sound, except as to the sap, and would make good lumber, the defendants perpetrated a deceit and fraud upon complainant in the sale of said logs, by which complainant is greatly injured and damaged, he having expended about $500 in hauling and sawing said logs and stacking the lumber. The complainant has paid defendants the first note, the payment having been made before he discovered or was informed that the lumber was worthless and unmarketable. The complainant offers to return to the defendants said lumber, and all the logs not sawed into lumber, upon the payment to complainant of the amount expended by complainant for hauling, sawing, and preparing said lumber for market. The prayer of the bill is that a writ of injunction issue, enjoining the defendants from making the sale as advertised under the power of sale contained in said mortgage; that said mortgage and notes be canceled and surrendered; that complainant recover of the defendants the money paid by the complainant on the note and mortgage, and also the money expended and the value of the services rendered in hauling and sawing said logs for market; that an account be taken between complainant and defendants; and that a reference be made to the register for the purpose of taking such account; and for such other, further, and general relief as the facts and equities of the case may require or demand. The writ of injunction was issued as prayed for. The defendants filed an answer in which they admitted the sale of the logs to the complainant, the execution of three promissory notes for the purchase price of said logs, and the execution of the mortgage to secure the payment of said notes. They deny in said answer that they falsely represented to complainant that the logs were sound, except for sap, and would make good lumber, and aver that the complainant did not rely upon any representation of the respondents in the purchase of said logs; he himself having inspected said logs, and making the proposition to the respondents in their purchase. The answer further avers: That before complainant erected the sawmill on Flint creek the respondents had purchased a large lot of logs along the banks of said creek above said mill. After they had put their logs into the creek, ready for moving when sufficient tide would permit, the complainant erected a bridge across the said creek, and between said logs and defendants' mill at Decatur, and so arranged said bridge that logs could not be brought past it with any degree of convenience. That complainant willfully and deliberately erected said bridge so as to prevent respondents bringing said logs past said bridge, thereby forcing them to sell said logs to complainant. The following facts were then averred in the respondents' answer: After the lapse of more than one year, said logs having remained in the water during that time, complainant proposed to purchase said logs from respondent at $4 per 1,000, and did purchase enough of said logs to cut 32,400 and odd feet of lumber, and was well acquainted with the character of said logs before the trade was made between complainant and respondents for which said notes and mortgage were given. After respondents had agreed to let complainant have said logs at $4 per 1,000, and after he had cut something over 32,400 feet of lumber out of said logs, and knew the exact condition of said logs as they were in the creek, complainant proposed to make a lumping trade with respondents, and purchase all logs belonging to respondents above said bridge in and along said creek; and as soon as respondents offered to take $500 in bulk, payable as set forth in said notes and mortgage, the complainant immediately accepted said proposition, executed said notes and mortgage, and took possession of said logs. That respondents made no representations of the soundness of said logs, for they did not, of their own personal knowledge, know the condition of said logs, and were not as well posted as to their condition as complainant. It was generally supposed between complainant and respondent that said logs would naturally be injured to some extent by having remained in the water the length of time said logs had been there. If they had been fresh cut, instead of bringing $500, a reasonable price for them would have been $1,500 or $2,000. That no complaint was ever made by complainant that said logs were damaged to any greater extent than was supposed at the time of the purchase, and after said...
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