Gatlin v. Serpell
| Decision Date | 11 October 1904 |
| Parties | GATLIN v. SERPELL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Edgecombe County; Moore, Judge.
Action by R. H. Gatlin against G. Serpell. From a judgment in favor of plaintiff for less than the relief demanded, he appeals. Affirmed.
Where plaintiff, in consideration of one dollar, etc., agreed to sell defendant the timber on a certain tract of land, to be removed by defendant within certain specified dates, and defendant agreed to pay $15,000 in three installments, to be applied on the price of the timber as it should be cut, at the rate of $1.50 per thousand feet, and to account semimonthly for timber cut after such $15,000 should be exhausted in timber cut from the land, and also gave defendant an option to purchase the land within a certain time at a certain price, such contract conferred a mere right to cut and pay for the timber as cut at the stipulated price and was not a sale of the timber.
W. A Dunn & Son and G. M. T. Fountain, for appellant.
Geo Cowper, for appellee.
This action was brought to recover of the defendant the amount of $3,709.70, alleged to be due as a balance under a contract concerning the sale of timber upon the land of the plaintiff entered into between the plaintiff and the defendant on the 28th day of January, 1898. It is admitted on all sides that the amount claimed by the plaintiff is due, unless the contract of January 28, 1898, is modified as to the price the defendant was to pay for the timber per thousand feet by a contract subsequently made between the parties under their seals in November, 1900. If the contract of 1898 was modified in the respect mentioned above by the one of 1900, then it is admitted that the defendant owes the plaintiff only $209.70. The contention of the plaintiff is that, while the latter contract recites a consideration moving the plaintiff in its execution, yet the recited consideration is neither in law nor in fact a valuable consideration, and that the seals are only a presumption of a consideration, and that that presumption is overcome by proof contained on the face of the contract itself. The original contract (of 1898) seems to have been drawn with care. It does not amount to an absolute sale of the timber on the land. The title to the timber did not at once pass to the defendant. No one can read it and arrive at the conclusion that the defendant had the right to take possession of the timber and dispose of it to others as he might see fit to do. In the first clause of the original contract the consideration of $1 is recited, and the plaintiffs declare that they "have contracted to sell and convey and to make any and all transfers and assignments releases, and conveyances which may be necessary to convey and transfer unto the said party of the second part or his assigns all the sound merchantable timber now standing and growing upon the several tracts of land particularly described in the schedule hereto attached." In consideration therefor the defendant, "for the purpose of paying the purchase money for the said timber, hereby covenants and agrees to and with the said parties of the first part that he will pay to the said P. E. Gatlin or her assigns, as hereinafter set forth, the sum of $1.50 for each and every one thousand feet of said timber to be cut as hereinafter set forth." The defendant further agreed that he would begin to cut the timber within three years from the date of the contract, unless he should be prevented from reasonable causes, in which event two years more were to be allowed him to begin the cutting; and that he would cut not less than 3,500,000 feet during each year until the entire timber should be cut from the land. There was a further provision in the contract, which gave to the defendant, in case he did not begin to cut the timber as provided, an option that he might purchase and take title to the land set forth in the schedule, the purchase price being $45,000. There was a further agreement between the parties that the defendant was to pay to Mrs. Gatlin or her assigns $5,000 upon the execution of her contract, and $5,000 on the 28th January, 1899, and the like amount on the 28th January, 1900--making in all the sum of $15,000; which said amounts so paid ...
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