Gamble v. Hogan

• Decision Date: 18 June 1953
• Docket Number: No. 34671,No. 2,34671,2
• Citation: 76 S.E.2d 658,88 Ga.App. 430
• Parties: GAMBLE v. HOGAN et al
• Court: Georgia Court of Appeals

Page 658

76 S.E.2d 658

88 Ga.App. 430

GAMBLE v. HOGAN et al.

No. 34671.

Court of Appeals of Georgia, Division No. 2.

June 18, 1953.

Syllabus by the Court.

1. Where, as here, the lessor of timber rights breaches the agreement by allowing a third party to enter and cut timber, and thereafter acknowledges the breach and enters into negotiations with the lessee for the purpose of reaching a settlement as to the amount of damages sustained, an extension of the lease agreement thereafter made, not as a satisfaction of the damages, but as a matter of mutual agreement to allow additional time in which a settlement can be reached, does not constitute a waiver of the rights of the lessee thereafter to insist upon his damages resulting from the breach of contract.

2. The evidence authorized the verdict in the amount returned by the jury and, having the approval of the trial court, will not be reversed by this court.

Hogan Brothers Lumber Company, a partnership composed of B. A. Hogan, S. E. Hogan, and Truett Hogan, as assignees of a timber lease, filed suit against the lessor John Gamble, in the Superior Court of Clark County for breach of contract. A trial resulted in a jury verdict of $1,000 in favor of the plaintiffs. The evidence most favorable to sustaining the verdict was substantially as follows: Pat Maxey, acting for the plaintiffs cruised the timber on the Gamble land and, after estimating that it would produce up to 200,000 feet of mixed oak, gum, and pine, entered into a contract giving him the right to cut all saw timber on the premises for a period of 36 months from March 12, 1947, the date of the contract, the consideration being $2,250 and 5,000 feet of lumber. This contract was assigned to the plaintiffs, who paid the full purchase price (except for a small amount of lumber now on call to the defendant's order), and thereafter instructed E. L. Ruark to put his sawmill on the premises and cut the timber for them. Ruark cut 96,974 feet of lumber on areas pointed out by the defendant, then informed Gamble he had cut all the timber, and left. Actually, some timber was left in areas cut over by him, and there were other areas which Gamble did not point out to him, and which he did not cut at all. The defendant then, without notifying or consulting with the plaintiffs, assumed that they had abandoned the tract, although the lease still had some time to run, and himself instructed one Tom Stanley to go in and cut over the timber. This was not known to the Hogans until after Stanley had cut a considerable amount of timber and removed a part of it. Stanley testified that he moved 13,305 feet of mixed oak, gum, and pine, and left the remainder cut on the land. B. A. Hogan examined the woods and estimated that Stanley had cut in all 50,000 feet. The plaintiffs and defendant immediately entered into negotiations as to this acknowledged breach of contract, the defendant stating that he was willing to make a fair settlement. The parties were unable to agree on an amount and, a year or so later, the plaintiffs insisted that they would have to have a settlement before the lease contract expired, whereupon the defendant, for the purpose of extending the time in which a settlement might be reached, executed the following instrument: 'I hereby extend cutting time on within timber contract from expiration date, March 12, 1950, to September 12, 1950.' The plaintiffs did not again enter the land, did not remove the timber already cut, and were unable to reach a settlement with the defendant. In January, 1952, the present action was filed.

After the rendition of the verdict, the defendant filed a motion for new trial on the general grounds, which was later amended by adding two special grounds. The overruling of this motion is assigned as error.

Rupert A. Brown, Athens, for plaintiff in error.

Carlisle Cobb, Athens, for defendants in error.

TOWNSEND, Judge.

1. The court charged the jury in part as follows: 'If you find the plaintiff is not entitled to recover, or if you find they have not sustained their case by the burden of proof, as I have outlined, then you would find in favor of the defendant. In that case the form of your verdict would be, 'We, the jury, find for the defendant.'' It is contended by the special grounds of the amended motion for new trial that the court erred in failing to charge without request that if the plaintiff, after an alleged breach,...