Dorris v. King

• Decision Date: 02 December 1899
• Citation: 54 S.W. 683
• Parties: DORRIS et al. v. KING et al.
• Court: Tennessee Supreme Court

54 S.W. 683

DORRIS et al. v. KING et al.

Court of Chancery Appeals of Tennessee.

December 2, 1899.

Appeal from chancery court, Sumner county; J. S. Gribble, Chancellor.

Suit by H. C. Dorris & Sons against D. T. King and others. Bill dismissed, and complainants appeal. Modified.

J. D. G. Morton, B. F. Allen, and B. D. Bell, for appellants. J. W. Blackmore and Seay & Seay, for appellees.

BARTON, J.

This bill was dismissed on demurrer, and the complainants have appealed, and assigned errors. The bill was filed against the following named parties: D. T. King, T. D. King, Mrs. Amanda King, Mary F. King, Susan King, Sarah Kirkpatrick and husband, William Kirkpatrick, Martha King, Callie King, William King, Florence Guthrie and husband, A. L. Guthrie. The bill alleges that one Andrew King died, in about 1888 or 1889, in Sumner county, leaving a will, which was probated on February 28, 1889; that Amanda King was his widow, and the other defendants his children, heirs at law, and devisees; that he appointed his wife executrix, and his son T. D. King executor; that he owned a farm of some six or seven hundred acres of land in district No. 7 of Sumner county; that in his will he provided that he wished everything to remain as it was, and gave his executrix power to sell stock, or whatever surplus they might have to spare on the place, and to give to any of his children that might marry, or otherwise need, keeping an account of the same, so as to make them equal after the death of his wife; that the family was to remain in possession and have the use of the farm until the death of the widow; that about 500 acres of the land was timbered land, upon which was standing a great many trees suitable to be sawed into lumber, and which were merchantable timber; that the complainants were the owners of a sawmill, and engaged in sawing lumber, on about May 25, 1896; that on or about that date the complainants and the defendants D. T. and T. D. King, calling themselves D. T. King & Bros., and representing all of the heirs and devisees of Andrew King, and acting under authority from said heirs and devisees, entered into a contract as follows: "Gallatin, Tenn., May 25, 1896. We, the undersigned, agree as follows: King Bros., of the first part, agree to furnish H. C. Dorris & Son, of the second part, all the merchantable timber on their lands, cut into saw logs of the proper length for manufacturing into lumber, and also agree to furnish said Dorris & Son a location for mill and yards, and the necessary timber to build sheds, free of charge. H. C. Dorris & Son, of the second part, agree to haul and saw said logs into merchantable lumber for 55 cents per hundred feet for all quartered oak. Said Dorris & Son agree to stock all the best grades out on the yard, and place other grades on the yard in good shape. King Bros., of the first part, agree to pay H. C. Dorris & Son the above prices of 55 and 65 cents per hundred feet for all lumber cut the first of every month during the time that the work is going on. This contract takes effect between the 15th of July and the 1st of August, 1896. D. T. King & Bros. H. C. Dorris & Son." The bill alleges that the land referred to in the above contract was the land in district No. 7 of Sumner county, which formerly belonged to Andrew King, and was, at the date of the said contract, in the possession of the defendants. The bill further avers that, acting on this contract, the complainants, in July, 1896, moved their sawmill, and put it on the land which belonged to the heirs and devisees aforesaid, at the place selected and furnished by the defendants; that this moving was an expense of about $900 to the complainants, and that, relying on this agreement, the complainants were prevented from moving their sawmill to some other point where it could have been profitably run, and that this caused them to lose much time; that the complainants commenced sawing early in August, 1896, but that the defendants quit cutting trees for them in September, 1896, and asked the complainants to suspend work for awhile. The bill avers that the complainants did this under written arrangement to stop until November 20, 1896; that the defendants again began to cut trees in the winter of 1897, and continued to do so until about February, 1897; that they then quit until the summer of 1897, and stopped cutting again in August, 1897; that they cut a few trees in the spring of 1898, and that since then they have wholly failed to cut any trees for complainants, and that the defendants had since then failed and refused to perform any part of their contract; that the complainants had been put to great expense to carry out their part of the contract, and had kept two four-horse teams, two two-horse teams, four drivers, two road men, one loader, eight men at the sheds, one pair of oxen and driver, and that their expenses amounted to $30 a day, but that while complainants were at all this expense the defendants had failed to furnish a steady supply of logs, and that there were times when they failed for months to furnish any trees; that all these facts — the loss of time, expense of moving, the expense of removing, if the contract was not carried out, the expense of getting ready to comply with their part of the contract, when but few trees were furnished for sawing, and the fact that they were prevented from engaging in business at some other locality — had damaged the complainants, and had caused them great loss. It was further averred that there was still remaining on the land merchantable timber sufficient to make 1,000,000 feet of lumber. The bill charged that the complainants were entitled to recover of the defendants the damage sustained by them on account of defendants' failure and refusal to comply with their contract, but, if the court should be of opinion that it was a case where it was impracticable and difficult to ascertain the amount of damage they had sustained, in that event complainants charge that the defendants should be compelled to specifically perform their contract. The bill alleges that in making this contract the defendants were acting for all the heirs and devisees of Andrew King; that it was made with the full knowledge and assent of all the heirs and devisees, and that they had ratified the contract after it was made; that the contract was for saw logs of the proper lengths for manufacturing into lumber, and that it was a contract for personal property; and that the land referred to in the contract or agreement was the land in district No. 7, formerly owned by Andrew King. The prayer of the bill was in the alternative, — for specific performance or for damages.

The defendants demurred to the bill, setting out some nine causes of demurrer, which are again substantially repeated in the argument on behalf of the defendants, which grounds are substantially as follows: That the contract was void, under the statute of frauds, because not signed by the parties sought to be charged, and because the land on which the timber was standing and located for the mill yard and sheds, and the timber itself, was not described in any way, and the contract was void for vagueness and uncertainty. That some of the defendants were no parties to the contract, although they were sued. That although the suit was on a written contract, and against the respondents as heirs and devisees of Andrew King, the contract itself did not so show, and the allegations of the bill were contrary to the written contract. That the contract could not be specifically enforced, because not signed by the parties, and because vague and indefinite. That it could not be sustained as a bill for damages, because it was an action for unliquidated damages; because the contract itself was too vague and indefinite, and void under the statute of frauds; because the bill did not show what the estate of respondents in the land which it was said was willed by Andrew King was; and because the bill showed the contract was signed by D. T. King & Bros., and that they and the heirs of King had no such estate or power to sell, and that only the executors had power to sell stock, and whatever surplus they might have to spare, and had no power to sell timber, and that everything was to remain as it was. Amanda King especially demurred, because the bill showed no right of action against her. Respondents Sarah Kirkpatrick and William Kirkpatrick and Florence Guthrie and A. L. Guthrie demurred, because the bill showed that respondents Sarah and Florence were married women, and the contract was not binding as against them, and that respondents William Kirkpatrick and A. L. Guthrie were only made parties defendant in their capacity as husbands. The other respondents demurred, because the bill did not show any contract with them, or either of them, written or oral; and, second, because their interest in the subject-matter of the contract alleged, whether joint or several, equal or unequal, was not alleged or shown, and because their interest, whatever it might be, in the timber standing and uncut is apparent from the bill to be incapable of ascertaining, and the contract, therefore, was incapable of enforcement by decree for specific performance, and for like reasons damages were incapable of ascertainment, as they would be too vague, uncertain, and speculative for action, and therefore not maintainable. The ninth ground of demurrer was that respondents all demur, because no title to timber passed to the complainants under the contract alleged, without which they cannot maintain this suit.

The consideration of this case, and of the many points raised under the demurrer, will probably best be taken up under three general heads or divisions: (1) As to whether or not this court has jurisdiction to maintain the suit as a suit for damages, or whether it is without the jurisdiction of the court, as being an action for unliquidated damages; (2) whether or not the suit...