Harmount & Woolf Tie Co. v. Baker

• Decision Date: 15 December 1933
• Citation: 66 S.W.2d 45,251 Ky. 795
• Parties: HARMOUNT & WOOLF TIE CO. v. BAKER.
• Court: Kentucky Court of Appeals

66 S.W.2d 45

251 Ky. 795

HARMOUNT & WOOLF TIE CO. v. BAKER.

Court of Appeals of Kentucky

December 15, 1933

Appeal from Circuit Court, Leslie County.

Action by the Harmount & Woolf Tie Company against Mat Baker wherein defendant counterclaimed. Judgment for defendant, and plaintiff appeals.

Reversed with directions to dismiss counterclaim and enter judgment for plaintiff and to enter restraining order against defendant.

C. W Hoskins, of Hyden, for appellant.

J. M. Muncy, of Hyden, for appellee.

RICHARDSON Justice.

The dominant question in this case is, What are the contractual relations of the Harmount & Woolf Tie Company and Floyd Gross and Clayton Gross during the period of time covered by their contracts?

In March, 1927, the Harmount & Woolf Tie Company and Floyd Gross entered into a written contract for the purpose of manufacturing timber on a tract of land in Leslie county into ties and logs, and delivering same. It was stipulated therein, among other things, that Gross was to be charged with $3,000, the purchase price of the standing timber, and all advancements made to him with which to defray the cost of manufacturing and delivering the timber products. For so financing him Gross agreed to pay it 10 cents per tie for all ties delivered and a commission of $5 "on all white oak and chestnut oak taken up, under the contract"; and, as the logs and their timber products were sold by the Harmount & Woolf Tie Company, Gross was to be credited by the sale price of the ties, the logs, lumber, and other timber products. On the completion of the contract, the accounts of the parties were to be adjusted, and the Harmount & Woolf Tie Company was to pay Gross whatever amount was shown to be due him; or, on the other hand, if the account showed that Gross owed it, in that event he was to pay whatever amount was due it.

Gross was to manufacture and deliver the ties and logs as fast as possible and at the earliest possible date, all expenses of manufacturing and delivering same to be paid by him. The manufacturing and the work incident thereto were to be done by him in a workmanlike manner and to the satisfaction of the Harmount & Woolf Tie Company. It reserved the right, if it became necessary for it to protect its interest, to cancel the contract, take charge of the equipment of Gross, manufacture and deliver the ties and lumber, allowing to him, as rental of his mill and equipment, 5 cents per tie and $1 per thousand feet of lumber manufactured on the mill. He agreed to get all ties in good shape and with due care run them by water to Athol, assuming all responsibility for the safe-keeping and delivery. It was agreed that he should have full control of the hiring and discharging his employees, and that it should have no control over them or right to instruct or direct him or them in the manufacturing and delivery of the ties, logs, and other of the timber products.

On July 3, 1928, the written contract was altered by a parol agreement. S. H. Gabbard and others entered into a written contract with the Harmount & Woolf Tie Company to cut, log, and deliver the timber sold in the log. Floyd Gross was to continue to cut, deliver, and manufacture, at the mill, timber on Merull branch, into ties; for the cutting and manufacturing the ties therefrom and delivering same to Athol, he was to be paid 60 cents per tie delivered at Athol. For cutting, delivering, and manufacturing the timber on another branch and rafting and delivering it at Athol, he was to be paid 80 cents per tie. For the lumber manufactured from the timber on the two branches, he was to be paid $2 for the cutting, and $6 per thousand feet for sawing and stacking it on the millyard.

About the 1st of August, 1928, Frank Boggs and Clayton Gross entered into a contract with Floyd Gross to saw the timber covered by the contract of Floyd Gross with the Harmount & Woolf Tie Company. In pursuance to this contract, they furnished the machinery and labor with which to manufacture the ties and lumber thereafter delivered under the contract of Floyd Gross with the Harmount & Woolf Tie Company.

During the period of the cutting, manufacturing, and delivering the ties and lumber of Floyd Gross and also Clayton Gross and Frank Boggs under their contract with Floyd Gross, the employees of Floyd Gross and also of Boggs and Gross were furnished board by Mat Baker. After the contracts for the manufacture and delivery of the ties under the contracts, supra, Mat Baker began to cut, remove, and convert to his own use timber standing on the land from which Gross manufactured the ties and lumber; also to remove and convert to his own use lumber stacked on the millyard in accordance with the contract of Gross.

This action was brought by the Harmount & Woolf Tie Company against him to recover the value of this timber and lumber, and for injunctive relief. Baker by answer asserted title to 9,000 feet of lumber, and further alleged that during the years 1927 and 1928 he had furnished board and other things to the employees of the Harmount & Woolf Tie Company, and for which it was indebted to him $444.

On a trial by the court, without the intervention of the jury, a judgment was rendered decreeing Baker the owner of the lumber to which he asserted title in his answer by purchase from Floyd Gross, and that he recover the $444 for boarding employees of Gross, Clayton Gross, S. H. Gabbard, Ed. Drake M. T. Evans, and J. C. Little, and they were agents of the Harmount & Woolf Tie Company in the execution of the contracts, supra, and therefore the Harmount & Woolf Tie Company was bound by their acts in the selling of the lumber to Baker as claimed by him and in making...