Davis v. Harris

• Decision Date: 10 September 1919
• Docket Number: 62.
• Parties: DAVIS v. HARRIS.
• Court: North Carolina Supreme Court

100 S.E. 111

178 N.C. 24

DAVIS v. HARRIS.

No. 62.

Supreme Court of North Carolina

September 10, 1919

Appeal from Superior Court, Edgecombe County; Bond, Judge.

Action by J. A. Davis against J. E. Harris. Judgment of nonsuit, and plaintiff appeals. Reversed in part.

The rule that a contract to cut and remove timber is not enforceable unless in writing is applicable only to executory contracts.

The plaintiff by oral contract sold to the defendant the mill timber on his land, the same to be measured and paid for at the rate of $6 per thousand feet before removal. The plaintiff admits that the defendant paid at that rate for all the timber cut and removed, but alleges that the defendant cut 163 other logs, which he left lying upon the land. The plaintiff further alleges that the defendant agreed that he would cut all the merchantable timber on the land, but that on the contrary, he picked out the best timber, which he removed and paid for.

The defendant denies these allegations. The plaintiff brings this action upon the ground that, the defendant having picked out the best timber, he is entitled to be paid a higher price for the same than $6 per thousand, and also to recover the value of the logs left upon the ground and not removed. The court nonsuited the plaintiff because the contract was not in writing.

G. M T. Fountain & Son, of Tarboro, for appellant.

Allsbrook & Phillips, of Tarboro, for appellee.

CLARK C.J.

A contract to cut and remove timber is not enforceable unless in writing. Mizell v. Burnett, 49 N.C. 252, 69 Am Dec. 744. But this applies to executory contracts only.

It appears in the record that it is admitted by both parties that there was no contract or memorandum of sale in writing; that all trees cut by defendant and removed were measured and paid for at $6 per M, but that the defendant cut other trees which were not measured or paid for or removed from the land. It is controverted that the defendant promised to pay for them, and that the logs have rotted by reason of the plaintiff relying on defendant's agreement to pay for them.

As to the first cause of action, the contract not being in writing and being denied by the defendant, the plaintiff is entitled to recover the injury to the land from the trees cut down and removed (Archibald v. Davis, 49 N.C. 138), or the value of the logs cut and removed as he may elect, unless he agreed to accept $6 per M in full payment,...