Duff v. P.T. Allen Lumber Co.
| Decision Date | 27 May 1949 |
| Citation | 220 S.W.2d 981,310 Ky. 439 |
| Parties | DUFF et al. v. P. T. ALLEN LUMBER CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Harlan County; J. S. Forester, Judge.
Action by George Allen Duff and another against P. T. Allen Lumber Company to recover damages on ground that defendant wrongfully broke contract with plaintiffs, whereby plaintiffs were to cut all of the timber on certain tract of land wherein the defendant filed a counterclaim. From judgment dismissing petition, the plaintiffs appeal.
Affirmed.
G. G Rawlings, Harlan, for appellant.
Lewis Hopper, Harlan, for appellee.
In October, 1946, the P. T. Allen Lumber Company, a corporation owned the timber on 952 acres of land in Leslie County, but whether they were also owners of the fee to that tract is not shown by the record. The whole acreage appears to have been covered with timber. The lumber company--defendant and appellee here--operated a sawmill at some place in Harlan County, as we gather from the record. The appellants, Duff and Renfro, were laborers and so far as this record shows possessed only a small amount of property. On the above date the company entered into a contract with appellants to cut all of the timber on the 952 acres above 12 inches in diameter and to saw the body of the trees into saw logs and skid (drag) them to a dump pile on the acreage where they would be later carried by truck to the mill of appellee to be manufactured into lumber.
Appellants were to receive for their labor the sum of $20 per thousand feet 'Boyle and Scribner measurement' and to be paid bi-monthly the amount then due them. Appellants agreed 'to furnish all the necessary equipment, teams and men for the cutting and skidding of said timber without any obligation to the owner, whatsoever,' and to use their own method and means in the cutting and skidding free from the direction and control of the lumber company. They also agreed 'to cut and skid trees every workable day and to have said trees at the log dump or skidway so the truck may load same for conveyance to the P. T. Allen Lumber Company at Baxter, Kentucky,' some miles distant.
The appellants began work under the contract as soon as it was executed, but they employed no help except one man who assisted in operating the saw in cutting and converting the timber into saw logs. They possessed at that time only two horses with which to skid the logs to the place where they were dumped, but, though not provided in the contract, the defendant furnished two horses of its own for that purpose. Plaintiffs operated under the contract for nine months during which period they cut the timber on about 30 acres of the tract which was 3 1/3 acres per month, and there was an average of about 3,000 feet per acre of available timber under the contract. They then ceased cutting and were paid for all of their services under the contract up to that time.
On January 6, 1948, plaintiff filed this action in the Harlan circuit court against appellee, company, to recover damages in the amount of $25,000, on the ground that it wrongfully cancelled and broke the contract by forbidding plaintiffs from carrying it out. They alleged in their petition that they were making a profit of $5 per 1,000 feet and if defendant had not wrongfully cancelled the contract they would have realized a profit of the amount sued for.
The answer of defendant denied that it had wrongfully or otherwise cancelled the contract, but that plaintiffs had done so and it sought by counterclaim to recover judgment against plaintiffs for their failure to perform their contract, since it could not at the time of their breaching the contract obtain the same services for less than $30 per 1,000 feet. Following pleadings made the issues and at the trial the court at the close of plaintiffs' testimony sustained defendant's motion for a directed verdict in its favor. Upon the verdict thus directed judgment was rendered dismissing the petition, to reverse which plaintiffs prosecute this appeal on the sole ground that the court erred in so directing.
The court concluded that (1) that contract specified no time for its performance, but was indefinite in that respect, and being so either party had the right to abandon or cancel it at any time, since it then became one at sufference or at the will of either party, and (2) that the testimony failed to show that the appellee renounced the contract. On this appeal appellants' counsel attacked the correctness of the court's conclusion, while appellee's counsel contends they are supported by the record. We need not discuss nor determine the latter contention since we have concluded that No. 1 is sustained by the record and completely supports the court's ruling in giving the directed instruction to find for defendant.
We have read all of the cases and authorities (few in number) cited by appellant's counsel and find none of them in conflict with the general rule above stated as to indefinite time of performance of contracts. Our latest case holding that where no time is fixed for the performance of a contract, and where the time for performance is indefinite it may be renounced by either party at any time, with or without cause, is Morgan v. Morgan, 309 Ky. 581, 218 S.W.2d 410. In support thereof we cited the case of Rutherford v. Azarch, 266 Ky. 559, 99 S.W.2d 719, 720.
The contract involved in the latter case was one of tenancy between the landlord and tenant and we held that 'the renting being for an indefinite period, appellant at most was a mere tenant at will.' In the Morgan opinion we said [309 Ky. 581, 218 S.W.2d 411]:
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...the contract and the circumstances under which it was executed, as well as the purpose to be accomplished." Duff v. P.T. Allen Lumber Co., 310 Ky. 439, 220 S.W.2d 981, 983 (Ky. 1949) (emphasis added). Since there was no duration stated for the hauling and disposal of liquid waste, it was an......
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