Haener v. Albro
| Decision Date | 06 November 1952 |
| Docket Number | No. 7831,7831 |
| Citation | 249 P.2d 919,73 Idaho 250 |
| Parties | HAENER et al. v. ALBRO et al. |
| Court | Idaho Supreme Court |
Carver, McClenahan & Greenfield, Boise, for appellants.
Clements & Clements, Lewiston, for respondents.
February 26, 1948, respondents, by written agreement, sold to the Camas Lumber Company (which later sold and assigneed its rights in said agreement to appellants) all the merchantable standing timber which was accessible, located on described real property on what is colloquially known as Joseph Plains, for $2.50 per thousand-feet log scale for all logs removed; to be paid $150 cash, receipt of which was acknowledged, balance upon a 1,000-foot log scale for all logs removed each month, paid by the tenth of the following month, one-half of the total purchase price to be paid any time after three years from the date of this agreement upon ten days' written demand by respondents, balance five years from the date of the agreement, or at the time the timber be cut and removed, if prior to five years; the balance due (i. e., evidently on standing timber, not logs) to be determined on a timber cruise basis and all cruises to be made by a certified cruiser or one agreed upon.
The purchasers further agreed to start construction of a main road to reach the timber described, within twelve months of the date of the agreement and complete construction thereof within two years; purchasers were to remove all timber within a fifteen-year period. Respondents granted purchasers the right to construct access roads for logging purposes, agreeing to give no right-of-way across their land to others during the life of the agreement.
August 12, 1950, appellants notified respondents in writing they would begin to construct logging roads and cut timber on their place August 14 or 15.
August 29, 1950, respondents served notice on the purchasers and their assignees and the Reconstruction Finance Corporation of cancellation and rescission of contract for failure to start, within twelve months of the date of the contract, construction of a main road to reach the timber, and to complete it within two years asserted false and fraudulent representations as to the location and character of the road to be built; the reasonable market and potential value of the timber, known by the purchasers to be false and relied upon by the sellers to their alleged irreparable damage; that the purchasers had no intentions of performing their contract, tendered the $150 down payment, and notified the purchasers not to enter upon respondents' premises or attempt to log or remove any timber thereon.
Suit for specific performance of the agreement was commenced by appellants, assignees of purchasers, September 20, 1950, and an amended complaint was filed November 1, 1950. The latter alleged in substance the making of the contract, assignment thereof, commencement of the construction of the road in the month of October, 1947; expenditure by the original purchasers thereon in excess of $45,000; completion of the road February 19, 1950, and an expenditure by the present appellants in excess of $20,000 on the road; acknowledged receipt of the notice given by respondents of August 29, 1950, and that the statements contained therein were false and without foundation and fact; that they were made maliciously to avoid the contract of sale in order to sell the timber to other purchasers at a higher price; and alleged appellants' readiness, willingness, and ability to perform all covenants and agreements of the contract set forth in Paragraph IV of the amended complaint, which contained a copy of the contract for the purchase of the timber and assignment thereof to the Prairie Land and Timber Company, and asked for a decree requiring respondents to specifically perform the contract according to its terms, and general relief.
Respondents' answer and cross-complaint admitted the making of the contract, service of notice of cancellation and rescission; otherwise, denied the allegations of the amended complaint, and by cross-complaint alleged that at the date of the agreement respondents owned approximately 3,000,000 feet of merchantable timber of the reasonable market value of $6 per thousand board feet; that respondents and other residents of Joseph Plains had suffered financial loss and inconvenience from the lack of a main or arterial road and had sought the construction thereof from the United States and State Highway Departments and Highway Districts; that respondents were without any experience as to logging or the value of standing timber; that the purchasers and their officers falsely and fraudulently represented to respondents to induce them to enter into the contract; that they, the purchasers----
'* * * were contracting for the majority of the merchantable timber standing in the Joseph Plains territory and would begin to log the same and manufacture it into lumber at Grangeville, Idaho, upon the completion of the construction of an all-weather two-lane highway or road from the Salmon River to the cross-plaintiffs' premises and surrounding territory, which highway or road would be located and of sufficient width, alignment, grade, surface structure and condition to adequately and safely transport all logs, livestock and products logged, manufactured and produced from the Joseph Plains, and the goods to be consumed therein, and the machinery and equipment to be used therein throughout the year, and to particularly meet the transportation needs and convenience of the cross-plaintiffs. That at the said time and place, the aforesaid further represented that they would begin the construction of said road within twelve months of the date of any contract executed by the cross-plaintiffs, and that it would be completed and available for their use within two years thereafter. That the aforesaid V. E. Park and Laurence N. Smith, (officer and attorney for purchasers) and at said time and place, also falsely represented to the cross-plaintiffs for the purpose of inducing them to enter into a contract with the Camas Lumber Company for the sale of their standing timber, that the same was valueless on account of the roads and transportation facilities then existing, and would continue to be so until a road such as they had described and represented would be built by them. That at said time and place the said Camas Lumber Company and the aforesaid V. E. Park and Laurence N. Smith knew that the cross-plaintiffs' standing timber was of the reasonable minimum market value as it then stood upon the premises of $6.00 per thousand board feet.
'That on the 17th day of August, 1950, the cross-plaintiffs, as soon as they had ascertained that said promises and representations of the Camas Lumber Company as hereinabove set forth were untrue and were never intended to be kept when made, and that said road was not constructed as contracted for, tendered the cross-defendant, Prairie Lumber Company, as alleged assignee of Camas Lumber Company, the sum of $150.00 in United States currency, the amount paid them on the date of the execution of the contract by Camas Lumber Company to apply upon the first logs cut according to the terms of the contract, and at said time and place advised them, as they had previously done, that said contract was cancelled, annulled, voided and rescinded and notified them not to enter upon the said land or cut or attempt to cut and remove any logs or timber therefrom. * * *.'
refusal of appellants to accept the tender, deposit thereof in a Bank; that the promises and representations made by the purchasers were made in bad faith to induce respondents to sell their timber at a grossly inadequate price; that they believed the statements and would not have entered into the contract but for such false and fraudulent statements; and asked for a decree cancelling, annulling, voiding, and rescinding the contract.
Appellants' answer to the cross-complaint specifically denied the allegation of Paragraph X thereof, which alleged that on August 17, 1950, cross-complainants 'as soon as they had ascertained that said promises and representations of the Camas Lumber Company * * * were untrue and were never intended to be kept when made, * * *.' (Emphasis added.)
The court found false representations had been made; that the appellants and their assigns had wholly failed to perform the terms and conditions of their contract with regard to the construction of a road, but 'that they only constructed one and one-half to two miles of new road, commonly referred to and found to be the 'Rooke cut-off', of the 18.8 miles from the Rice Creek bridge, which is found to be the starting point of the 'main road' contemplated, and did realign and widen an existing public road for approximately three miles and made some other...
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