Dean v. Coosa County Lumber Co.

• Decision Date: 16 April 1936
• Docket Number: 5 Div. 219
• Citation: 167 So. 566,232 Ala. 177
• Parties: DEAN v. COOSA COUNTY LUMBER CO. et al.
• Court: Alabama Supreme Court

167 So. 566

232 Ala. 177

DEAN v. COOSA COUNTY LUMBER CO. et al.

5 Div. 219

Supreme Court of Alabama

April 16, 1936

Appeal from Circuit Court, Coosa County; W.W. Wallace, Judge.

Bill for injunction, etc., by W.R. Dean, as administrator of the estate of C.T. Singleton, deceased, against the Coosa County Lumber Company and others. From a decree denying injunction complainant appeals.

Reversed and remanded, with directions.

Complaint which alleged that seller's successors upon declaring forfeiture of contract for sale of timber shortly after buyer's death, for nonpayment of monthly installment, had reentered premises and were wrongfully cutting and selling timber thereon which had been sold to buyer, held to state case for injunctive relief pending determination of cause. Code 1923, § 8304.

Pertinent parts of the agreement referred to in the opinion are as follows:

"1. That the contract of sale and purchase hereinabove referred to dated on towit, April 21, 1934, shall be and remain in full force and effect except in so far as the same is changed by the provisions of this supplemental agreement.

"2. That the said Singleton Lumber Company shall purchase and pay for 100,000 feet of said stumpage per month beginning this date and continuing until all of said stumpage has been purchased and paid for. If any stumpage in excess of said 100,000 feet per month shall be purchased and paid for in any month, any excess over said 100,000 feet per month may be applied on the next succeeding month or months."

"5. That the said Coosa County Lumber Company has hereby released to the said Singleton Lumber Company, subject to the provisions of the existing contract, and this supplement thereto, the timber referred to in said contract and located on the following described lands, towit:

"Northwest fourth of Northwest Fourth, Section 17, Township 22, Range 19, Coosa County, Alabama.

"Exhibit B 1--aggregating 112,000 feet and amounting to the sum of $952 which said Singleton Lumber Company has this day paid in cash to the Coosa County Lumber Company, receipt of which is hereby acknowledged by the Coosa County Lumber Company.

"6. That if the Singleton Lumber Company shall fail in the performance of this contract, including this supplement thereto, according to the terms thereof then all of the timber theretofore purchased by it, paid for, and remaining uncut, shall be forfeited to the Coosa County Lumber Company as liquidated damages for the breach of this contract, including the supplement thereto. In event of a breach of this contract, including the supplement thereto, by the Singleton Lumber Company,

and making of such forfeiture by the Singleton Lumber Company, the said Coosa County Lumber Company shall be immediately authorized to enter upon said lands, cut, manufacture and remove all timber embraced in the contract between the parties or otherwise dispose of the timber as it sees fit, including the timber already purchased and paid for by the Singleton Lumber Company as well as the timber embraced in this contract and supplement thereto which has not been paid for by the said Singleton Lumber Company at the time of the said breach and forfeiture and without any interference on the part of the Singleton Lumber Company and without any liability therefor by the said Coosa County Lumber Company to the said Singleton Lumber Company."

Basil A. Wood, of Birmingham, for appellant.

H.A. Teel, of Rockford, and Holley & Milner, of Wetumpka, for appellees.

KNIGHT Justice.

The bill in this cause was filed by W.R. Dean, as administrator of the estate of C.T. Singleton, against the Coosa County Lumber Company and others, seeking relief against a forfeiture, discovery, and an accounting, for temporary and permanent injunction, and for general relief.

The bill was presented to Hon. W.W. Wallace, judge of the circuit court of Coosa county, Ala., for temporary injunction. However, Judge Wallace made an order, setting the application for hearing at Rockford, Ala., on March 24, 1936. Notice as required by the order of the judge was given the defendants, and, upon the hearing, the judge refused the writ of injunction, as prayed for, and from this order the present appeal is prosecuted by the complainant.

The application for injunction was heard upon the sworn bill as amended. No answer or demurrer was interposed by the defendants, and no evidence, either by way of affidavits or oral testimony, was offered by either party.

It appears from the averments of the bill that the Coosa Lumber Company and the said C.T. Singleton, deceased, on April 21, 1934, entered into a contract for the sale and purchase of all merchantable timber, as defined in said contract, upon the lands described in said agreement. The purchaser, the said C.T. Singleton, agreed to pay the said Coosa Lumber Company in cash for the timber, as the same was released to him, at the rate of $8.50 per thousand feet stumpage. The amount of stumpage sold and purchased had been ascertained and agreed upon at the time of the execution of the contract, and the agreement sets forth in an exhibit thereto the amount of stumpage on each governmental subdivision of said land.

At the time of the execution of the contract the said Singleton agreed to pay, and did pay, the said Coosa Lumber Company for 236,000 feet of said timber, at the rate of $8.50 per thousand feet, or the sum of $2,006. This purchase included the timber on the following described lands, viz.: Northeast quarter of southwest quarter and northwest of southwest quarter, section 8, township 22, range 19, Coosa county, Ala. The timber on this land was to be released by the Coosa Lumber Company to the said purchaser.

The contract, in paragraph 4, contained this further provision: "Furthermore, the purchaser agrees that at all times during the life of this contract, to purchase and pay for same in cash, 236,000 feet or more of timber in advance of the cutting or removing of said timber upon the delivery by the grantor of the proper releases from the Alabama Lumber Investment Company and the grantor; and the timber so purchased in advance being in the nature of an advance cash payment hereunder and to continue to purchase the timber in such manner until all the timber embraced herein has been paid for, provided, however, if any of the terms and conditions of this contract have not been fully performed and carried out by the purchasers and they should fail to purchase the timber in advance of the cutting and removing as stipulated herein, then and in that event the timber therefore purchased and uncut shall go to the grantor as liquidated damages for failing so to do. The performance on the part of the purchaser herein contemplated being a substantial compliance with the terms and conditions of the contract."

Paragraphs 5, 6, and 8 of the contract read:

"5. That the remainder of the timber so purchased shall be released to the purchaser from time to time as requested upon payment by the purchaser therefor at said stipulated price, it being agreed that release shall be in forty acre tracts or multiples thereof.

"6. That during the continuance of this contract, the grantor shall upon request by the purchaser and on payment therefor at said stipulated price, release to said purchaser the timber so purchased upon said forties of said timbered land as the purchaser shall designate such releases to be evidenced by proper instrument in writing conveying the title to such timber to the purchaser."

"8. The purchaser shall have two years from the date of this contract within which to cut and remove the timber here contracted to be purchased subject to the provisions hereinbefore contained in this paragraph."

Thereafter, on December 18, 1935, the said seller and purchaser entered into an agreement, extending the period within which the said Singleton should be allowed to cut and remove said timber, and making further provisions with reference to the cutting and paying for said timber. Paragraphs 1, 2, 5, and 6 of the new agreement appear in the report of the case.

The said C.T. Singleton, on December 18, 1935, the date of the execution of the extension agreement, paid the Coosa Lumber Company $952, being payment for 112,000 feet of stumpage, which was an excess of 12,000 feet over the amount required to be paid for by the terms of the new or extended contract, and for this excess the purchaser was to be given credit on the amount of stumpage he was required to purchase and pay for during the succeeding month of January, 1936.

It appears that the said C.T. Singleton died on January 23, 1936, without having made any other payment on the timber contract. At the time of his death he was in default as to the advance payment for 88,000 feet of stumpage, and we may concede that he had been in default as to that payment since January 18, 1936; that is to say, for five days prior to his death. However, at that time, and continuously since the execution of the original contract on April 21, 1934, the Coosa Lumber Company held in its possession $2,006 of Singleton's money, paid to it as advance payment on timber.

It further appears from the averments of the bill as amended that on the 7th day of February, 1936, just fifteen days after the death of said Singleton, the said Hamrick, Pearson and Little, who claimed to have succeeded, on the dissolution of the corporation of Coosa Lumber Company, to "the title to the contracts and title to the property described in the bill of complaint, in their individual capacities," proclaimed that the said Singleton was in default under said contracts in the payment for 188,000 feet of timber stumpage, and "declared all the interest and all of the payment theretofore made by Singleton, and all...