Gay Mfg. Co v. Hobbs

• Decision Date: 12 March 1901
• Citation: 128 N.C. 46,38 S.E. 26
• Parties: GAY MFG. CO. v. HOBBS.
• Court: North Carolina Supreme Court

38 S.E. 26

128 N.C. 46

GAY MFG. CO.

v.HOBBS.

Supreme Court of North Carolina.

March 12, 1901.

SALE OP TIMBER—CONTRACT—VALIDITY-REASONABLE TIME—APPEAL.

1. Under Code, § 957, authorizing the supreme court to render any judgment on appeal which the entire record shows should hcve been rendered, a judgment nullifying a contract on the ground of fraud in its inception will be sustained where the contract, as shown by the record, is void on its face.

2. A contract for the sale of standing timber, which allows the purchaser five years to cut and remove the timber, from the time when he first begins to manufacture such timber into lumber, is void for uncertainty, since it constitutes a lease, but fails to fix a time for the commencement of the term.

3. The rights of the purchaser under a contract for the sale of growing timber over 14 inches in diameter when cut, and allowing a reasonable time to remove the timber, is waived by failure to commence to remove the timber for 13 years.

Appeal from superior court, Chowan county; McNeill, Judge.

Action by the Gay Manufacturing Company against J. A. Hobbs. From a judgment in favor of defendant plaintiff appeals. Affirmed.

Shepherd & Shepherd and Pruden & Pruden, for appellant.

W. M. Bond and Charles Whedbee, for appellee.

MONTGOMERY, J. It was admitted on the trial below that the logs belonged to the plaintiff, and that the plaintiff would be entitled to recover them if the contract, which was in writing, was sufficient and valid in law to convey them. The contract was entered into on the 26th of April, 1887, between Noah Hollowed and his wife and the plaintiff, and it was set forth therein that for the consideration of $200, one half to be paid on the execution and delivery, and the other half to be paid in 12 months, Hollo-well and wife had sold and conveyed to the plaintiff "all the timber, down to 14 inches across the stump when cut, on 50 acres of Hollowell's land." It was further stipulated in the contract that Hollowed was to pay all taxes, dues, assessments, etc., on the land and on the timber, and that there was allowed to the plaintiff "the full term of five years within which to cut and remove the timber hereby convened; said term to commence from the time said party of the second part begins to manufacture said timber into wood or lumber." The trial below was conducted altogether upon issues of fraud alleged to have been committed by the plaintiff on Hollowed and his wife in the treaty, and the inducement leading up to the contract. The issues were found in favor of the defendants, and a judgment was entered for the value of the logs; the plaintiff having taken them into his possession. It was further adjudged that the contract between Hollowed and his wife and the plaintiff was void,...