Brumley v. McCormack
| Decision Date | 23 May 1929 |
| Docket Number | No. 4564.,4564. |
| Citation | 17 S.W.2d 597 |
| Parties | BRUMLEY v. McCORMACK. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Christian County; Fred Stewart, Judge.
Action in replevin by J. L. Brumley against Al McCormack. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.
Moore & Moore, of Ozark, for appellant.
G. Purd Hays, of Ozark, for respondent.
Action in replevin for possession of 35 cords of slab wood. Trial by court and issues found for defendant. Plaintiff appealed.
This action resulted from a contract between plaintiff and defendant relative to clearing certain land and cutting certain timber thereon and on some other land. The contract was oral, and there appears to be no difference between the parties as to the language used when the contract was first made. There is a difference as to the terms of a modification of it which was afterward made. The original contract was as follows: Plaintiff was to cut the timber, and such of it as was fit to be sawed into lumber was to be cut into logs suitable for that purpose, and plaintiff was to deliver these logs to a sawmill. Some small trees not fit for lumber were to be made into fence posts. The tops of all these trees and the balance of all other trees were to be cut into wood; such as were fit for cordwood to be cut into cordwood, and the other to be cut into what is termed pole wood. Each one was to have half of all the wood, half of the fence posts, and half of the lumber, and each to pay one-half the cost of sawing the lumber. Afterward it was agreed that defendant should deliver the logs to the mill and receive three-fourths of the lumber and plaintiff one-fourth, instead of each receiving one-half. There was also a modification of the contract as to the wood, and as to the terms of this modification the parties disagreed. The plaintiff stated that it was agreed that defendant should have 40 cords of cordwood and plaintiff to have all the remainder of the wood. Defendant stated that he was to have 40 cords for his half of the cordwood and the plaintiff the remainder of the cordwood, no matter how much or how little it might be, and that this modification did not affect the contract as to the remainder of the wood. The slabs, which means the portion of the log sawed off in preparing logs to be sawed into lumber, were not mentioned at any time in any conversation had between the parties, and it is from that fact that the parties disagreed over the disposition of these slabs.
Plaintiff claimed that the contract to give defendant 40 cords of wood gave him all the other wood and that the slabs were wood. Defendant claimed that, as the timber in the tree belonged to him and nothing was said about the slabs, the slabs having been a part of the timber in the tree still belonged to him after they were sawed off the logs. Since the court sitting as a jury found for defendant, we must accept defendant's statement as to what was said, when the contract was modified, as correct.
The modification of the contract, however, is not very material, as there is no controversy now over the division of the cordwood and the polewood, and the only controversy here is about the slabs which were not mentioned in any conversation between the parties.
Plaintiff contends that where the clearing of the land is to be paid for by the timber taken off the land, the timber, when severed from the soil, becomes the property of the party severing it, and cites us to the case of McAllister v. Walker, 69 Mo. App. 496, and 25 Cyc. 1555, par. 2, in support of his position, and insists that these authorities control in this action, and as a result the title to all the timber and wood severed from the soil in this case passed to plaintiff when severed. That would be true if the contract had provided in this case, as it did in that case that plaintiff was to have all the timber in payment for his work; but in this...
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......183. The rule is the same as to a deed or any other written contract. General Refractories Co. v. Howard, 328 Mo. 1139, 44 S.W.2d 65; Brumley v. McCormack, Mo.App., 17 S.W.2d 597. Not only did the overwhelming weight of the evidence show that the actual agreement between the ......
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......183. The rule is the same as to a deed or any other written contract. General Refractories Co. v. Howard, 328 Mo. 1139, 44 S.W.2d 65; Brumley v. McCormack, Mo.App., 17 S.W.2d 597.' . Considering this case in the light of the law as above set out we find that the trial court ......
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Brumley v. McCormack
...17 S.W.2d 597 BRUMLEY v. McCORMACK. No. 4564Court of Appeals of Missouri, SpringfieldMay 23, Appeal from Circuit Court, Christian County; Fred Stewart, Judge. Action in replevin by J. L. Brumley against Al McCormack. From a judgment for defendant, plaintiff appeals. Reversed and remanded, w......