Felder v. Oldham

• Decision Date: 05 October 1945
• Docket Number: 15256,15257.
• Citation: 35 S.E.2d 497,199 Ga. 820
• Parties: FELDER et al. v. OLDHAM. OLDHAM v. FELDER et al.
• Court: Georgia Supreme Court

35 S.E.2d 497

199 Ga. 820

FELDER et al. v. OLDHAM.

OLDHAM v. FELDER et al.

Nos. 15256, 15257.

Supreme Court of Georgia

October 5, 1945

Syllabus by the Court.

1. Count one of the petition fails to set out an act of God, an act of the seller, or an unforeseen casualty or misfortune which would authorize an extension of time for the removal of timber under the terms of the contract that is the basis of the suit.

2. The tender of a sum of money for the purpose of extending the period of time for the removal of timber under a contract was, under the facts alleged in this case properly made to the administrators.

(a) Whether or not the purchaser of timber exercised due diligence in his efforts to remove timber from land within a required period, under the facts here alleged, is a question of fact to be determined by a jury.

3. There is no misjoinder of parties in this case.

4. The special demurrers to that portion of the petition detailing certain alleged knowledge and conduct on the part of the seller of the timber were properly sustained.

George F. Oldham filed suit against H. A. Felder and Mrs. Annalene Nelson, as administrators of the estate I. D. Felder, and against all the heirs at law of I. D. Felder. The petition was in two counts. Count one alleged in substance that on September 16, 1940, the plaintiff entered into a contract with I. D. Felder for the purchase of timber located on a described tract of land. The timber was to be paid for by the payment of $5000 cash, and the balance of $15,000 in monthly installments at the rate of $4 per thousand, board feet for the timber cut each month. The entire purchase-price has been paid. The contract for the purchase of the timber provided: 'It is expressly understood and agreed by and between the parties hereto that the said party of the second part, his heirs and assigns, is to have the free use and enjoyment of the timber on the above-described premises, for the purposes aforesaid, for a term of four (4) years from and after the 16th day of September, 1940; however, the party of the second part shall not have the right to cut the timber suitable for sawmill purposes off of this land more than once during the term of this lease. It is further understood and agreed that the party of the second part is to have the right of free and uninterrupted use of the land above described for the full term of this lease, for the purpose of ingress and egress, to cut and remove timber and lumber, to put up a sawmill or sawmills, and to place upon said lands other machinery or fixtures, and to do all other acts and things necessary to the full enjoyment and use of cutting, hauling, marketing, and disposing of the timber on said land above described. * * * If the party of the second part, at the expiration of the term of this lease, shall have not been able to cut and remove the timber and lumber from the above-described premises, then, in that event, he shall have the right to renew this lease from year to year for the additional sum of $250; however, it is understood and agreed that the right to renew this lease shall not be given over any part of said timber to be cut more than once during the term of this lease or any renewal thereof.' Count one further alleged: That 'I. D. Felder, Sr., was fully informed as to the business conditions of this plaintiff and also as to the timber and sawmill business in South Georgia and Alabama generally,' knew that the plaintiff was a man of limited means, and would be unable to pay the deferred payments under the lease unless he could do so by cutting the timber in controversy and other timber simultaneously; that Felder knew the plaintiff was required to cut his lumber in accordance with specifications as to length and size, which specifications had been previously furnished to the plaintiff by his customers, and that the plaintiff, in a large percentage of cases, could not cut the lumber from the land on which the timber here involved was located for the reason that the specifications called for timber of larger dimensions, and of different quality, than that growing on the land here involved; that Felder, with full knowledge of these facts, 'did, on the 28th day of October, 1940, lend to this plaintiff an additional sum of $7000, at a time when said I. D. Felder, Sr., knew said additional sum was to be used by this plaintiff to pay the purchase-money of a large body of timber in southeast Alabama known as the Wilson Place, to be cut by the plaintiff, and said Felder took, as security for said loan, a conveyance of the paper by which said Alabama timber was purchased, knowing the fact that said timber had to be cut by the plaintiff in three years, and that the cutting thereof should proceed in conjunction with the cutting of said timber on said Felder lands and other timbers. Plaintiff has carried out contract with reference to said Alabama lands, and has repaid the entire amount of said $7000 loan and interest thereon.' Count one also so alleged that, since making the contract, and on or about December 7, 1941, the United States has become involved in war with Germany and Japan, which has resulted in a labor shortage, making it impossible to secure sufficient labor with which to cut and remove all the timber within the four-year period set out in the contract, about $5,000 worth of timber remaining uncut; that the plaintiff has used due diligence in cutting the timber; that, by reason of the facts set out in the petition, the plaintiff is entitled to have the period of time in which he is permitted to cut the timber extended for a reasonable length of time; that the defendants deny that the plaintiff has this right and threaten to exclude him from the property at the end of the four-year period. The prayers of count one of the petition are: '1. That said defendants, and each of them, and their agents, be immediately restrained and enjoined from carrying out their announced purposes and threats, and restrained and enjoined from excluding plaintiff from said lands, and from claiming that plaintiff will have no right to cut said timber, after September 16, 1944, and plaintiff prays that after notice, such injunction be made permanent. 2. That, regardless of the foregoing, a decree be entered in this case, to the effect that plaintiff has been prevented by acts of God and other forces over which plaintiff had no control, from completing the cutting of said timber mentioned in 'Exhibit A,' within the four-year terms mentioned in 'Exhibit A,' and that thereby, in order to avoid the harsh forfeiture, plaintiff shall have the right for a reasonable time after said September 16, 1944, to complete the cutting of his timber on said lands, which timber has already been paid for in full by the plaintiff.'

Count two of the petition sets out the same facts as count one, with the following additional allegations: 'Out of an abundance of caution, this plaintiff has also elected to exercise his right of renewal of said lease, conferred upon him by the clause therein which provides that, if he has not been able to cut and remove said timber and lumber from said premises at the expiration of said term, he 'shall have the right to renew this lease from year to year for the additional sum of $250,' provided he shall not be entitled to renew it so as to cut over lands which have heretofore been cut over by him, and plaintiff has no desire to do that. Pursuant to his said election, plaintiff has, on September 12, 1944, made a legal tender of said $250 to said administrators, to effectuate said renewal for another year, but each of said administrators declined to accept the same, and refused to recognize plaintiff's right to have such renewal. Plaintiff has continuously offered said $250 since that time. Out of said extra precaution, said plaintiff here and now tenders said $250 in court, and deposits the same with the clerk of this court, to be continuously tendered to said administrators, in order to effectuate such renewal of said lease for another year from and after September 16, 1944.' Count two prays for an injunction in the same language as count one, and prays 'that the court order said $250 deposited in the registry of the court to be held as a legal and continuous tender of the same by the plaintiff to said defendants, and that on the final hearing said defendants be required by the decree of this court to accept said tender and to specifically perform the agreement mentioned in said 'Exhibit A,' by which said lease shall be renewed for another year.'

The defendant administrators and the heirs at law filed identical demurrers, demurring generally to both counts of the petition; likewise demurring specially to certain paragraphs of both counts. The trial judge overruled the general demurrers to both counts, sustained certain special demurrers, and overruled other special demurrers.

The plaintiffs in error except to the judgment overruling the general demurrers as to both counts, and to the judgment overruling certain special demurrers. The defendant in error by cross-bill excepts to the judgment in so far as it sustained certain special demurrers to both counts of the petition.

A. H. Gray, of Blakely, for plaintiffs in error.

Bennet, Peacock & Perry, of Albany, for defendant in error.

WYATT Justice.

1. We consider first the ruling on the general demurrer to count one of the petition. This count in effect seeks an extension of...