Doherty v. Harris Pine Mills, Inc.

• Decision Date: 06 September 1957
• Citation: 211 Or. 378,315 P.2d 566
• Parties: Cornelius DOHERTY and Agness Doherty, Appellants, v. HARRIS PINE MILLS, Inc., a corporation, Respondent and Cross-Appellant.
• Court: Oregon Supreme Court

Page 566

315 P.2d 566

211 Or. 378

Cornelius DOHERTY and Agness Doherty, Appellants, v. HARRIS PINE MILLS, Inc., a corporation, Respondent and Cross-Appellant.

Supreme Court of Oregon.

Argued and Submitted at Pendleton May 6, 1957.

Decided Sept. 6, 1957.

Willis A. West, Portland, argued the cause and filed a brief for appellants.

George H. Corey, Pendleton, argued the cause for respondent and cross-appellant. With him on the brief was P. W. Mahoney, Heppner.

Before LUSK, J., Presiding, and BRAND, WARNER and KESTER, JJ.

BRAND, Justice.

Plaintiffs Doherty brought this action to recover from the defendant company, Harris Pine Mills, Inc., damages for timber trespass. The amended complaint alleges that the plaintiffs at all times therein mentioned were the owners as tenants by the entirety and in possession of real property fully described therein. Plaintiffs allege

'That on or about May 1, 1953, the said defendant, its officers, agents and employees, entered upon said real properties and did thereafter, without lawful authority, wilfully and intentionally, cut down and remove 4,008,465 board feet of pine timber standing and growing on plaintiffs' said described real properties belonging to plaintiffs, said timber having a reasonable value of $144,304.74, to plaintiffs' damage in the sum of $144,304.74.'

Plaintiffs pray for judgment in treble the amount named.

The defendant company answered, denying any alleged trespass. It also filed four other pleas, (1) in abatement, (2) in estoppel, (3) for reformation of contract, and as its fourth plea defendant filed what it described as an answer 'by way of counterclaim for declaratory judgment.' It was stipulated that all issues be heard and decided by the court without the empaneling of a jury. The court first took the testimony offered by the defendant relative to the so-called counterclaim for declaratory judgment, and relative to the alleged estoppel and plea for reformation. Defendant rested and the plaintiffs presented their case. The court made findings of fact and conclusions of law and rendered judgment against the plaintiffs. It denied the defendant's pleas in abatement, estoppel and reformation, and on the so-called counterclaim for declaratory judgment, entered a declaration and judgment favorable to the defendant, the nature of which will be stated infra. The plaintiffs appeal from the adverse judgment, and the defendant cross appeals from those portions of the judgment which denied defendant's plea in abatement and plea for reformation. Bills of exceptions presented to the trial court by both parties were settled and allowed.

The controversy relates to the interpretation or construction of a contract for the sale and purchase of timber on lands belonging to the plaintiffs. The contract is set forth in full in the plea in abatement and is incorporated by reference in the pleas in estoppel, for reformation and for declaratory judgment. We shall not refer further to the plea in estoppel because the court denied relief on that ground and defendant did not appeal from that portion of the judgment. We now set forth all of the contract except some portions which have no bearing upon the issues:

'This Agreement made and entered into this 4 day of May, 1943, by and between Charles McDevitt, hereinafter called the Seller, and Harris Pine Mills, Inc., an Oregon corporation, hereinafter called the Purchaser, Witnesseth:

'This contract is made in lieu of and as a substitute for that contract for the sale of the timber hereinafer described made on the 2nd day of December, 1940, by and between the same parties as the parties to this agreement.

'That the parties hereto, for and in consideration of the mutual covenants herein contained, hereby agree with each other as follows:

'The Seller does hereby agree to sell and the Purchaser does hereby agree to buy, cut and remove from the premises hereinafter described all of the following merchantable pine and fir timber located on the following described premises, the same to be trees which will cut logs the tops of which mush be ten inches in diameter.

'It is agreed that the timber of the hereinafter described real property has been cruised, and that the parties have agreed on the number of board feet upon each tract of land, and that the tracts upon which the timber so sold and purchased and the amount of the timber on each tract is as follows:

'Morrow County--Township 4 South, Range 29, E.W.M.

'Tract 1. 12-40's (described)--434,000 board feet of pine

'Tract 2. 6-40's (described)--1,015,000 board feet of pine

'Tract 3. 12-40's (described--1,505,000 board feet of pine

'Tract 4. 6-40's (described)--925,000 board feet of pine

'Township 4 South, Range 30, E.W.M.

'Tract 5. 2-40's (described)--165,000 board feet of pine

'Tract 6. All of Section 7.--1,133,000 board feet of pine

'Tract 7. 5-40's (described)--39,000 board feet of pine

'Tract 8. 8-40's (described)--1,485,000 board feet of pine

'The Purchaser does hereby agree to pay for the said pine timber at the rate of $1.75 per thousand board feet. In this connection, it is agreed that the total amount of timber agreed to be sold and purchased under this agreement is 6,701,000 board feet of pine timber and that the total purchase price for the pine timber located on the hereinabove described tracts of land is $11 726.75, which sum the Purchaser promises and definitely agrees to pay to the Seller.

'Purchaser does hereby agree to pay for the said fir timber at the rate of $1.25 per thousand board feet. In this connection, it is agreed that the total amount of fir timber agreed to be sold and purchased under this agreement is 25,000 board feet, and that the total purchase price for the fir timber located on the hereinabove described tracts of land is $31.25, which sum the Purchaser promises and definitely agrees to pay to the Seller. Upon the above purchase price the sum of $3000.00 has heretofore been paid, the receipt whereof is hereby acknowledged.

'It Is Mutually Agreed that the Purchaser shall pay all of the purchase price for said timber on or before November 1, 1957, and shall pay any part thereof or all thereof within thirty days after the Seller shall have demanded payment by written demand.

'The Purchaser agrees that before entering upon any tract of land hereinabove mentioned for the purpose of cutting the timber thereon as herein provided, and before commencing to cut any timber on any tract as hereinabove described, that the Purchaser shall pay to the Seller the full purchase price for all of the timber located upon said tract of land as above mentioned, and in this connection the Purchaser promises and agrees not to move any timber thereon until the purchase price as above outlined has been paid in full.

'It is understood and agreed between the parties that the legal title to the above described timber shall remain in the Seller until the Purchaser has paid the purchase price as herein provided for, and in that connection it is further agreed that the Purchaser shall have no right, title or interest in or to any of the above described timber until the same has been paid for by the Purchaser as herein provided.

'The Purchaser is to cut only trees, the logs from which will measure ten inches or more at the top, and agrees not to molest or cut any pine or other timber of smaller size than herein specified, and also agrees not to cut, molest or destroy any Tamarack or other timber located on the above described real property.

'The Purchaser agrees to pay for all of the timber hereby agreed to be sold on or before November 1, 1957, and unless paid for on that date all of the Purchaser's rights to the remaining standing timber on said lands on that date shall cease and terminate.

'It is further agreed that the Purchaser is to designate the tract of land upon which he is to start cutting, and that he shall not be entitled to cut any timber upon any separate tract of land hereinabove mentioned until he shall have paid the full purchase price for the timber located upon said separate tract of land to the seller and has secured Seller's written receipt therefor, designating the particular tract upon which the Purchaser has paid for. The Seller agrees to give the Purchaser a separate receipt for each payment, showing the description of the tract of land upon which the timber has been paid for by the Purchaser.

'It is further agreed that the Purchaser shall not permit any other person or persons to go upon said lands for the purpose of making wood out of the limbs and tops cut, or for any other purpose, without the written consent of the Seller, and in this connection, it is agreed that the limbs and the tops of all trees cut by the Purchaser shall be viewed as the property of the Seller.

* * *

* * *

'In the event of the failure of the Purchaser to comply with any of the terms or conditions of this contract for thirty days after having been notified by the Seller of any default, the Seller may at his option terminate the contract and take possession of the premises and all timber located thereon, excepting only such timber as has been paid for by the Purchaser as herein specified, and in such event all rights of the Purchaser in timber not then paid for shall immediately cease and terminate, but nothing herein contained shall limit any right or remdy that the Seller might otherwise have against the Purchaser, and the Seller does hereby retain unto himself any other right of remedy either at law or in equity which he might otherwise have under this contract. It is further understood that Harris Pine Mills, Inc., or their successors, shall have until November 1, 1957, in which to log the above timber.'

It is the contention of the plaintiffs that the foregoing contract is definite and unambiguous. They say first that the contract authorized the defendant to cut and remove 6,701,000 feet of pine timber and no more. Their second contention relates to the portion...