Elsberry v. Sexton

• Decision Date: 14 February 1911
• Citation: 54 So. 592,61 Fla. 162
• Parties: ELSBERRY v. SEXTON.
• Court: Florida Supreme Court

54 So. 592

61 Fla. 162

ELSBERRY v. SEXTON.

Florida Supreme Court, Division B.

February 14, 1911

Error to Circuit Court, Jackson County; J. Emmet Wolfe, Judge.

Action by L. P. Sexton against G. H. Elsberry. Judgment for plaintiff, and defendant brings error. Reversed and remanded with directions.

Syllabus by the Court

SYLLABUS

A sale of standing timber is a contract concerning an interest in land within the meaning of the statute of frauds (section 2517, General Statutes of 1906), which forbids the bringing of any action whereby to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or of any uncertain interest in or concerning them, unless the agreement or promise upon which such action shall be brought or some note or memorandum thereof, shall be in writing and signed by the party to be charged therewith, or by some other person by him thereunto lawfully authorized. Under this statute, where a contract is for the sale of land, or any interest therein, and is not in writing, no action at law can ever be maintained upon it. Part performance of such a contract is a ground of relief in equity only, and there on the principle of relieving from fraud.

COUNSEL Price & Lewis, for plaintiff in error.

C. L. Wilson, for defendant in error.

OPINION

TAYLOR J.

The defendant in error as plaintiff below sued the plaintiff in error as defendant below in the circuit court of Jackson county in an action of assumpsit at law, and recovered judgment which the defendant below brings here for review by writ of error. The declaration in the case alleged as follows:

'First Count: That on or about the first day of June, A. D. 1907 the plaintiff and the defendant entered into a verbal agreement and contract whereby the defendant purchased of the plaintiff five hundred pine trees standing and growing on the plaintiff's land at Round lake, in Jackson county, Florida, for the sum of one thousand dollars, said timber to be cut and removed from said land by the first day of January, 1908. Plaintiff alleges that the entire contract price of one thousand dollars was due and payable on or about the first day of January, 1908. Plaintiff further alleges that in pursuance of said contract the said defendant entered upon the said land of the plaintiff's, and did cut and remove therefrom one hundred and fifty (150) of said pine trees, and has paid the sum of $300.00 on account of said contract for said pine trees so purchased. And the said defendant has never finished cutting said five hundred (500) trees, but they were still standing on the said land, subject at all times to be cut by the said defendant, and plaintiff has been at all times ready and willing, and is still ready and willing, for the defendant to finish carrying out his contract by the cutting of said timber. That the time for the payment of the balance due of said one thousand dollars for said timber is now long past due, and only $300.00 of same has been paid, and, although plaintiff has demanded payment of the balance due, the defendant has failed and refused to pay same. Wherefore plaintiff sues and claims nine hundred dollars damages.

'Second Count: Plaintiff sues and alleges, that on or about the 1st day of June, 1907, the plaintiff and the defendant entered into a verbal contract whereby the defendant purchased from the plaintiff five hundred (500) pine trees standing and growing on the plaintiff's land at Round Lake, Jackson county, Florida, for the sum of one thousand dollars for said five hundred (500) pine trees, said timber to be cut and removed from said land by the first day of January, 1908, and plaintiff alleges that in pursuance of said contract the said defendant entered upon the said land of the plaintiff and did cut and remove therefrom one hundred and fity (150) of said pine trees, and paid the plaintiff the sum of $300.00 on account of the purchase price of said five hundred pine trees, but the defendant has never carried out his contract and cut the five hundred trees which he purchased; and the plaintiff alleges that said defendant, in making the said contract with the said plaintiff to purchase said trees, intended thereby to injure, defraud, and damage the plaintiff, and under the guise of such contract the said defendant intended to enter upon the plaintiff's land and cut one hundred and fifty (150) of the best pine trees out of the five hundred (500) which plaintiff sold to defendant, leaving three hundred and fifty (350) which were not so large and good and of less value, but plaintiff did not know that the defendant, at the time of making said contract, intended to so injure, wrong, and defraud him. Plaintiff alleges that the time for the cutting of said timber and the time for paying for same has long since elapsed, and by reason of the defendant cutting the best part of said timber, the other three hundred and fifty (350) trees are not worth over fifty cents per tree, and plaintiff is unable to sell them for more than fifty cents per tree, and plaintiff further alleges that $300.00 does not compensate him for damages sustained by reason of the taking away of the said one hundred and fifty (150) largest pine trees from said land, and by reason of the taking of the said one hundred and fifty (150) trees and leaving three hundred and fifty (350) of those which were not so valuable, the defendant has damaged the plaintiff in the sum of nine hundred dollars. Wherefore plaintiff sues and claims nine hundred dollars damages.'

To this declaration the defendant interposed a demurrer upon the following grounds, among others:

'(2) That said contract set up and declared upon by said declaration and each count thereof is void under the statute of frauds.

'(3) That it is apparent from the allegations...