H. Weston Lumber Co. v. Lacey Lumber Co

• Decision Date: 12 July 1920
• Docket Number: 21168
• Citation: 85 So. 193,123 Miss. 208
• Court: Mississippi Supreme Court
• Parties: H. WESTON LUMBER CO. v. LACEY LUMBER CO

85 So. 193

123 Miss. 208

H. WESTON LUMBER CO. v. LACEY LUMBER CO

No. 21168

Supreme Court of Mississippi

July 12, 1920

March 1920

APPEAL from chancery court of Hancock county, HON. WM. DENNY, JR. Chancellor.

Suit by the Lacey Lumber Company against the H. Weston Lumber Company. Decree for plaintiff, and defendant appeals. Reversed, and decree entered for defendant.

Decree reversed.

C. N Hill and E. J. Bowers, for appellant.

Gen Waller & Morse, for appellee.

STEVENS J. HOLDEN, J., dissenting.

OPINION

STEVENS, J.

Appellee, a corporation, exhibited its bill in equity against appellant, a corporation, to recover four thousand two hundred and thirty dollars, the purchase money for the lands described as the Southeast quarter of Southeast quarter of section 10, and West half of Southeast quarter, section 11, township 5, south of range 16 west; and in support of its claim alleged in substance, the following facts: That prior to March, 1912, one W. B. Harbeson was the owner of the lands; that Harbeson had conveyed to appellee, the Lacey Lumber Company, the right to cut and remove all of the merchantable pine timber; that the timber was to be manufactured at appellee's sawmill at Carriere, Miss.; that appellee had a tram or logging railroad over which the logs would be transported, and before appellee company was permitted to move and manufacture the timber the Poitevant & Favre Lumber Company, a corporation, claimed to be the owner of the lands, and in assertion of its claim the last-named company filed its bill of complaint against the said Harbeson and the Lacey Lumber Company in the chancery court of Pearl River County, seeking to confirm its (the complainant's) title, and enjoined Harbeson and Lacey Lumber Company, the defendants to said suit, from cutting and removing the timber; that the injunction was issued and served, and that the Lacey Lumber Company was thereby prevented from cutting the timber, the bill further alleges that the Lacey Lumber Company had practically cut out its standing timber in the territory in which the land was situated, and desired to remove the logging railroad, and that it was important that the timber be cut and transported over the logging line then in existence, and that appellee could not well afford to wait for a final determination of the suit theretofore instituted by Poitevant & Favre Lumber Company, it being emphasized that if said logging road was moved before the timber was cut there would be no sale for said timber, and its value would practically be lost to appellee. It is then set forth in the bill that in order to avoid a violation of the injunction, and in order that it might be able to cut and remove the timber while the logging railroad was near the timber, it entered into negotiations with appellant, the H. Weston Lumber Company, for the purchase of the same land and timber that was involved in the Poitevant & Favre suit. Complainant learned and knew that an agreement or contract had been made between the Poitevant & Favre Lumber Company and the H. Weston Lumber Company, whereby the former had sold and conveyed to the said H. Weston Lumber Company large holdings of timber and timbered land, including the lands hereinabove mentioned, but that the Poitevant & Favre Lumber Company had not conveyed to the H. Weston Lumber Company the particular lands here involved because of the fact that the title had been brought into question, and that suit was necessary to confirm the title and settle certain trespasses upon the land, but that the Poitevant & Favre Lumber Company had executed a written agreement to convey to the H. Weston Lumber Company when their title had been confirmed by the chancery court of Pearl River county. Knowing these facts, the bill charges that the appellee negotiated with the H. Weston Lumber Company, and agreed to pay four thousand two hundred and thirty dollars for the lands, but in doing so the bill charges that there was a special agreement or contract between appellee and the H. Weston Lumber Company that if appellee won its suit against the Poitevant & Favre Lumber Company, then pending, appellant should refund the four thousand two hundred and thirty dollars and that if appellee lost the said suit appellant should retain the consideration thus agreed upon. It is further averred in the bill that aforesaid agreement about refunding the moneys under the conditions named was not incorporated in the warranty deed which appellant executed, and on that account appellee by its bill prayed that the said warranty deed be reformed so as to incorporate the said agreement It is further alleged that the Poitevant & Favre Lumber Company lost the said suit, and that on that account it became the duty of appellant to refund the money under said agreement. It is also alleged that there was no consideration, that the title which appellant conveyed had failed, and for that reason appellee was entitled to recover the consideration. A demurrer to the bill having been overruled appellant answered, admitting the execution of the warranty deed in 1914 pending the litigation between the Poitevant & Favre Lumber Company and Harbeson and appellee, but denied any special agreement to refund the moneys, and further set up in the answer that appellee bought appellant's claim for the express purpose of cutting the timber, and before the title to the land had been adjudicated and thereby received exactly what it had bargained for, and denied liability altogether. The cause was set down for hearing on bill, answer, and testimony.

For the complainant Mr. Harbeson testified to facts set up in the bill, while Mr. Weston testified for the defendant, appellant here. The pleadings and decree rendered by the chancery court in the former litigation between Poitevant & Favre Lumber Company and appellee were introduced. The final decree reads as follows:

"This cause, coming on for final hearing at a special sitting of the court, as per previous order of the court, on bill of complaint and amendment thereto, answer, and amended answers, depositions, record evidence, and agreement of parties, and same having been fully argued and presented to the court, was by the court, as per consent of all parties, taken under advisement, and now, having been fully considered by the court, the court being of the opinion that there is no merit in the bill of complaint and that as such it should be dismissed at the complainant's cost, it appearing that the title to the land embraced in said bill, or that is the south east quarter of south east quarter of section 10, and the west half of north west quarter of section 11, all in township 5 south, range 16 west Pearl River county, Miss., is in the respondent Lacey Lumber Company, as per title set up by it, and not in the said complainant, as per title hereby presented, and the court having been informed as to the proper amount of attorney fees to be allowed in this cause by way of damages, as suggested in its pleading or notice, the respondent withdrawing all of its demands for damages, with the exception of the item for attorney's fees, and it appearing to the satisfaction of the court, that the sum of five hundred dollars is a reasonable amount as attorney's fee in this cause:

"It is therefore the judgment of the court, and is ordered, adjudged, and decreed that the bill of complaint in this cause be, and the same is hereby, dismissed; that the titles set up to said land hereinabove described is in the said respondent Lacey Lumber Company as per the title by it pleaded, and it is further ordered, adjudged, and decreed that the injunction in this cause be, and the same is hereby, dismissed, set aside, and dissolved, and that the respondent do have and recover of and from complainant the sum of five hundred dollars, and all costs of this court, for all of which let execution issue.

"Ordered, adjudged, and decreed, this the 22d day of October, 1914."

The question of fact as to whether there was a...