Hartzell v. Choctaw Lumber Co.

• Decision Date: 25 April 1933
• Docket Number: Case Number: 22973
• Citation: 163 Okla. 240,1933 OK 254,22 P.2d 387
• Parties: Hartzell v. Choctaw Lumber Co.
• Court: Oklahoma Supreme Court

1933 OK 254

22 P.2d 387

163 Okla. 240

Hartzell v. Choctaw Lumber Co.

Case Number: 22973

Supreme Court of Oklahoma

Decided: April 25, 1933

Syllabus

¶0 1. Contracts--Acceptance Required to Correspond With Offer in Every Respect.

In order that an offer and acceptance may result in a binding contract, the acceptance must be absolute, unconditional and identical with the terms of the offer, and must in every respect meet and correspond with the offer; and any qualification of or departure from those terms invalidates the offer.

2. Limitation of Actions--Action Upon Implied Contract to Pay for Property Converted.

One whose property has been converted by another to the enhancement or benefit of the tort-feasor's estate may elect not to sue on the tort, but to sue upon the implied contract to pay for the property so converted. However, such an implied contract negatives the idea of a written contract, and the cause of action is governed by the statute of limitations contained in the second subdivision of section 185, C. O. S. 1921 (sec. 101, O. S. 1931).

3. Same--Demurrer to Petition Showing on Face That Action is Barred Held Properly Sustained.

Where a petition upon its face shows that the action brought is barred by the statute of limitations, it is not error for the court to sustain a demurrer to the petition upon the ground that the petition does not state a cause of action.

4. Same--Statutes as to Set-Off and Counterclaim Held not Applicable.

The pleadings examined and held, that plaintiff's petition does not allege sufficient facts to constitute it a set-off or counterclaim, as contemplated by sections 274 and 275, C. O. S. 1921 (sections 207 and 208, O. S. 1931).

Appeal from District Court, McCurtain County; George T. Arnett, Judge.

Action by R. A. Fincher and others against the Choctaw Lumber Company; Paul A. Hartzell intervening. Demurrers to petition of intervener sustained, and he appeals. Affirmed.

C. C. Hatchett, for plaintiff in error.

Barrett & Dickson, J. S. Kirkpatrick, Chas. E. McPherren, and Tom Finney, for defendants in error.

BAYLESS, J.

¶1 R. A. Fincher, J. H. Wright, and A. J. Wright, hereinafter referred to as plaintiffs, filed their petition on the 27th day of March, 1930, in McCurtain county, against the Choctaw Lumber Company of Delaware, a corporation, hereinafter designated as defendant, which petition, in substance, alleged that the defendant was indebted to them in the sum of $ 4,392.50, being the balance due upon a certain sale contract entered into between the parties. To which petition the defendant filed its answer, admitting such liability, but alleged that Paul A. Hartzell had some claim to said fund, and asked that he be made a party to said suit. Thereafter the defendant filed a pleading designated, "Petition for an order requiring the filing of a petition of intervention, " which motion, in substance, alleged that, pursuant to the terms of said contract, the plaintiffs agreed to liquidate and pay all liens, incumbrances, and indebtedness against the property so purchased, and that the defendant was entitled to withhold said amount, until the terms of said contract had been complied with; that one Paul A. Hartzell was asserting a claim against it for said property purchased, and it asked that Hartzell be made a party defendant.

¶2 Pursuant to such request the court thereafter ordered Paul A. Hartzell made a party to said action, and said Paul A. Hartzell, hereinafter designated as intervener, filed his petition on the 13th of April, 1931, alleging, in substance, that he was the owner of certain lands located in McCurtain county, and that sometime in the years 1925, 1926, and 1927, said plaintiffs and defendant wrongfully cut and removed from said land great quantities of timber without the consent and knowledge of said intervener.

¶3 Intervener further alleges that he is not aware of the exact amount of timber cut and removed from said land, but alleges that the parties cut and removed approximately 700,000 feet of yellow pine timber and approximately 40,000 feet of chestnut and other hardwood timber, and alleges the value of said timber so removed to be the sum of $ 5 per 1,000 feet. Intervener further alleges that on December 11, 1926, and on January 7, 1927, said plaintiffs, acting by and through R. A. Fincher, one of said plaintiffs, advised this intervener by letters of the cutting of said timber and agreed and offered to pay intervener for the timber so cut from his land at the rate of $ 3 per 1,000 feet, and that said letters admitted the cutting from intervener's land 400,000 feet of lumber, which said letters are attached to his petition of intervention.

¶4 Intervener further alleged that the defendant had full knowledge that the timber was cut by the plaintiffs from intervener's land and that the lumber so cut was included in the sales contract entered into between the plaintiffs and defendant, and that by reason thereof the defendant is liable for the value of the timber cut from his land. Intervener prays that the plaintiffs and defendant be required to account to him for all of the timber so cut, and that he have judgment against the said parties for the value of this timber so cut and removed.

¶5 After the petition of intervention had been filed, the plaintiffs and defendant separately demurred to the petition of intervention and cross-petition for the reason, among others, that "the alleged cause of action is barred by the statute of limitation of the state of Oklahoma, and under the provisions of section 185 of Compiled Oklahoma Statutes, 1921 [O. S. 1931, sec. 101], the said Paul A. Hartzell, intervener, cannot maintain said alleged action." Thereafter, on the 3rd day of July, 1931, the court sustained said demurrers, and the order of the court sustaining said demurrers finds as follows:

"* * * That the alleged action of said Paul A. Hartzell, intervener, herein, against both the parties plaintiff, and party defendant, involving the subject-matter of this action, was, at the time of the filing of the petition of intervention and cross-petition, of the said Paul A. Hartzell, intervener, barred by the statute of limitations of the state of Oklahoma."

¶6 Intervener elected to stand on his petition of intervention and prosecutes this appeal to this court. If the intervener's right of recovery was based upon trespass to said property, clearly the court did not commit error in sustaining the demurrer, for, as will be noted from the petition, the intervener alleges that the timber was removed in the years 1925, 1926 and 1927, and the record discloses that his petition in intervention was not filed until April 13, 1931. It was not brought within two years as provided in subdivision 3 of section 185, C. O. S. 1921 [O. S. 1931, sec....