Griffin v. Anderson-Tully Company

• Decision Date: 12 July 1909
• Citation: 121 S.W. 297,91 Ark. 292
• Parties: GRIFFIN v. ANDERSON-TULLY COMPANY
• Court: Arkansas Supreme Court

121 S.W. 297

91 Ark. 292

GRIFFIN v. ANDERSON-TULLY COMPANY

Supreme Court of Arkansas

July 12, 1909

Appeal from Chicot Chancery Court; Zachariah T. Wood, Chancellor affirmed.

Decree affirmed.

J. R Parker, for appellants.

1. The evidence sustains the findings of the master, and his findings are as conclusive as the verdict of a jury. 85 Ark 414.

2. The contract specified "all of the cottonwood trees 20 inches in diameter and up at the stump now standing or located on the following lands." It is plain and unambiguous, and the size specified referred to the time the contract was executed. 55 L. R. A. 513; Id. 524 and notes.

Brown & Anderson, for appellee.

1. The cross-complaint tenders no issue as to timber cut in violation of the contract, i. e. under 20 inches in diameter on the 8th day of May, 1902. It nowhere sets up any claim for such timber nor sues for the value of same. The only injury complained of was the removal, after May 8, 1907, of timber which had been cut prior thereto but had not been removed before the expiration of the contract. The only relief prayed for is that all of said cottonwood trees be turned over to the defendants. There is not even a prayer for general relief. 22 Ark. 227; 4 Ark. 302; 25 Ark. 570; 30 Ark. 612; 29 Ark. 500; Id. 637.

2. The court erred in its interpretation of the contract in limiting appellee's right to cut only such timber as was 20 inches in diameter and over on May 8, 1902, the date the contract was executed. Properly construed, appellee was given the right to cut timber of such diameter any time within five years from the date of the contract. 39 S.W. 428.

3. The court erred in overruling appellee's exceptions to the master's report and in giving judgment for 76,605 feet of timber in addition to the 174,178 feet shown by the estimate of S. F. Horner. There is no evidence to justify such report of the master.

J. R Parker, for appellant in reply.

The cross-complaint is sufficient to tender an issue as to timber cut in violation of the contract, especially when considered in the light of the proof. If defectively stated, the appellees might have moved before trial to make the cross-complaint more definite and certain; but pleadings will be treated by this court as amended to conform to the proof where no exception has been saved to the introduction of the proof. 76 Ark. 551; 77 Ark. 1; 75 Ark. 181; 73 Ark. 8; 71 Ark. 562; 70 Ark. 161; 67 Ark. 426; 67 Ark. 455; 65 Ark. 422.

OPINION

HART, J.

The foundation of this suit is the following contract:

"For and in consideration of the sum of three thousand five hundred ($ 3,500) dollars, cash in hand paid to us by L. W Snyder, agent for Anderson-Tully Company, the receipt whereof is hereby acknowledged, we, T. K. Lee and J. P. Alexander, described herein as parties of the first part, bargain, sell, convey, transfer and warrant unto Anderson-Tully Company, known herein as parties of the second part, all of the cottonwood trees twenty inches in diameter and up at the stump now standing or located on the following described property, what is known as the Florence Plantation, Chicot County, State of Arkansas, commencing at west line of the Tecumseh Plantation, running to Adams place on the east, the levee is the north line, Mississippi River and Wailer place is the south line. The party of the second part, or assigns, shall have the full, free and undisturbed right of entry on and into said lands for the term of five years from this date to cut, raft and carry away said trees sold to them. Parties of the second part shall have the right with their employees to go in and upon said land and to use and occupy same for such necessary and useful purposes, in order to cut and carry away said cottonwood timber. Also small trees necessary for rafting timber for towing. All the rights herein granted to said Anderson-Tully Company shall include their heirs and assigns.

"In witness whereof the parties have hereunto signed their names, this 8th day of May, 1902.

"Anderson-Tully Company, parties of the second part, agree and bind themselves not to hire any of T. K. Lee and J. P. Alexander's (parties of the first part) plantation laborers, without first consulting parties of the first part, or their agents, and securing their consent thereto.

(Signed) "T. K. Lee,

"J. P. Alexander.

"Witnesses:

"John M. Parker,

"H. W. Langer."

A complaint was filed by the Anderson-Tully Company, a Michigan corporation, in the Chicot Chancery Court, against J. W. Griffin, T. K. Lee and J. P. Alexander Company, Limited, a Louisiana corporation, it being alleged that these defendants had purchased the lands mentioned in the contract since the date of its execution.

On the 8th day of May, 1907, a large number of the trees from said land had been felled and cut into logs; but the logs had not been removed from the land. The amount was estimated to be 400,000 feet. The plaintiff alleged that it had not been able to remove the same on account of high water, and the object of this action was to enjoin the defendants from interfering for a reasonable time with its servants and employees in removing the logs.

A temporary injunction was granted which by the final decree was made perpetual. The defendants answered, denying the title of the plaintiff to the logs remaining on the land at the date of the expiration of the contract, and by way of cross-complaint alleged that the plaintiff had cut a lot of timber, which was under the size of the trees conveyed. They asked that the plaintiff be enjoined from removing any of the timber until their rights could be determined, and that a master be appointed to take an account of the amount of timber cut, which was under the size mentioned in the contract.

By agreement of the parties to the suit, R. D. Chotard, the clerk of the court, was appointed special master to ascertain the amount of cottonwood timber cut on said land by plaintiff and appropriated to its use, which was not embraced in the terms of the contract above set forth. He was given power to summon witnesses and take all necessary proof to ascertain that matter.

The master reported that 250,683 feet of cottonwood logs, less than 20 inches in diameter at the stump at the date of the execution of the contract, were cut upon the land described in the contract, and that the price of said logs was the sum of $ 877.39. The report was confirmed by the court, and a decree was entered, in accordance with the report, against the plaintiff in favor of said defendants for said sum of $ 877.39, with six per cent. interest per annum thereon from the date thereof, viz., April 10, 1909, until paid.

Both the plaintiff and defendant introduced evidence tending to sustain their respective contentions, and both have appealed from that part of the decree against them.

This court decided in the case of Indiana & Arkansas Lumber & Manufacturing Co. v. Eldridge, 89 Ark. 361, 116 S.W. 1173, that under a contract for the sale of growing timber, whereby the grantee is authorized to cut and remove timber within a certain period of time, the title to timber cut by the grantee within such period, but not removed from the land, passes to such grantee. Under this decision, the plaintiff owned all the trees embraced within the terms of its contract which had been severed from the soil and cut into logs at the date of the expiration of its contract, and had a right for a reasonable time thereafter to remove them. The evidence shows that at the time the final decree was entered these logs had been removed. Hence the question of whether the court was right in its decree as to the injunction passes out of the case. The logs belonged to the plaintiff, and it removed them before the final decree was entered. The appeal from that part of the decree is therefore fruitless, and the court will not consider whether it was right or wrong. Wilson v. Thompson, 56 Ark. 110, 19 S.W. 321.

Counsel for plaintiff urges that no issue was raised by the...