Huey v. Tipton
| Decision Date | 22 December 1986 |
| Citation | 734 S.W.2d 330 |
| Parties | James A. HUEY, Plaintiff-Appellee, v. David R. TIPTON, Anne Edwards Young, Walter T. Roberts, Elizabeth T. Roberts, Elizabeth Roberts Hopper, Paul Roberts, William Carlton Roberts, LaVergne T. Sudbury, Douglas T. Sudbury, Horace L. Tipton, Jr., Beulah T. Wyatt, Shirley Krueger, James M. Sudbury, Jr., and Hale C. Tipton, III, Defendants-Appellants. 734 S.W.2d 330 |
| Court | Tennessee Court of Appeals |
William B. Acree, Jr., Union City, for plaintiff-appellee.
Omer and Taylor, Brentwood, for defendants-appellants.
Defendants, grantors under a timber deed to plaintiff, appeal from the judgment of the trial court sitting without a jury declaring the timber deed in full force and effect and reducing the future annual payments required by its terms.
On June 25, 1980, the parties executed a document entitled "Timber Deed" by which defendants for $60,000 cash paid by the plaintiff conveyed to the plaintiff all the timber standing on the described tract of land, 14 inches in diameter, measured 12 inches from the ground. We quote the provisions of the deed pertinent to this lawsuit:
The Grantee, its successors and assigns, are hereby granted until July 1, 1981, within which said timber and trees herein sold and conveyed must be cut and removed. However, upon payment by Grantee in the amount of $5,000 per annum due and payable to the Grantor on or before July 1, 1981, and on or before July 1 of each year thereafter, Grantor agrees to extend the time limit for cutting and removing timber covered by this conveyance on an annual basis until such time as the described timber has been cut. However, in no event shall the time limit be extended beyond July 1, 2000. The Grantee further covenants that if default is made in said annual payment or if Grantee violates any of the covenants of the deed, then said Grantee shall waive all rights of notice and Grantor shall be entitled to immediately re-enter and retake possession of all timber conveyed by this instrument.
In addition to the initial $60,000 payment, plaintiff made the required payments for the following four years. At the time the lawsuit commenced, the plaintiff had removed only about $10,000 worth of timber. Plaintiff testified that at the inception of the agreement the value of the proper size timber was less than the initial $60,000 payment and that he intended to allow the trees to grow in order to produce a profit.
In February, 1985, the State of Tennessee filed a condemnation proceeding for approximately 112 acres of land which named the plaintiff and all of the defendants as parties. The price offered by the State was a lump sum and it made no attempt to allocate the proceeds between the plaintiff and defendants as their interests may appear. Subsequent to the filing of the condemnation proceedings, plaintiff and several of the defendants met to discuss the future conduct of the proceedings and the allocation of the proceeds. Plaintiff testified that at that meeting they also discussed a reduction in the future annual payments because of the taking by the State. Plaintiff testified that he suggested to the defendants at the meeting that his future annual payments be reduced by about one-fifth since the state had taken almost one-fifth of the total acreage, but that defendants did not agree on this. He testified that they said they would consider the matter and get back in touch with him. Plaintiff states that he did not make the July 1, 1985, payment because he waited to hear from the defendants as to the amount they wanted for that annual installment but never heard from them. Some of the defendants that were at the meeting testified that they made no such representations to plaintiff and did not hear any of the other defendants making any such representations.
On July 1, 1985, plaintiff was out of the country and did not make the payment due on that date. On July 10, 1985, defendants through their attorney notified the plaintiff that the option to remove the timber was terminated. On July 13, 1985, plaintiff tendered payment of $5,000, but this was not accepted by the defendants and was returned to plaintiff.
The trial court found that the defendants suffered no damage as a result of the thirteen day lapse in the tender of the $5,000 annual payment and that to allow defendants to terminate the timber deed and retain the $80,000 paid by plaintiff would be inequitable, amount to a forfeiture, and would result in unjust enrichment to the defendants. Accordingly, the court held that the timber deed was still in full force and effect. Also, the court held that the annual payments beginning in 1986 should be reduced from $5,000 to $4,000. Defendants have presented nine issues for review which we will quote as necessary in the consideration of the issues in the order presented by defendants.
Issue No. 6: Whether the court erred in admitting testimony concerning conversations between the appellee, Huey, and the appellants, over objection when, by stipulation in the complaint and answer or the averment and admission in the complaint and answer was that no such conversation had ever occurred.
Although our view of this issue is that it is without merit based on the record, we will not prolong this opinion to discuss the issue because no objection was made to the introduction of the evidence in the trial court. Appellate review on the improper admission of evidence is waived unless the evidence was timely objected to at the trial. Hailey v. Cunningham, 654 S.W.2d 392, 395 (Tenn.1983); Morrow v. Thompson, 626 S.W.2d 706, 708 (Tenn.App.1981).
Issue No. 7: Whether the trial court erred in admitting any testimony concerning conversations with "they" without identifying the speaker.
During the testimony of plaintiff, he was questioned concerning the meeting that he had with some of the defendants concerning the State's action condemning part of the property. We quote from the transcript:
Q. Was there any discussion between you and the Tipton heirs about an adjustment being made of the $5,000 annual payment?
A. There certainly was, and they agreed it should be adjusted.
[defendant's attorney] Mr. Taylor: "They?"
Your Honor, I am going to object until we can be more specific on "they."
THE COURT: Let the objection be overruled. He has ennumerated some of the Tiptons and he said he thought most of the Tipton heirs that he knew were there. So that's sufficient.
Defendants assert that plaintiff never identified the person or persons with whom he discussed an adjustment of the annual payment. In Kunk v. Howell, 40 Tenn.App. 183, 289 S.W.2d 874 (1956), the court, in considering the admissibility of a statement attributed to one of the defendants to a police officer, stated:
It goes without saying that before the statement would be admissible against the defendant it would be necessary that plaintiff identify the declarant. But this could be done either by direct or circumstantial evidence.
Id. at 878. In Kunk, the question was whether the declaration was admissible against that particular defendant. Certainly some evidence must be introduced that the defendant made such a declaration. In the case before us, however, we have multiple defendants and plaintiff testified that some of the multiple defendants had the conversations with him. We believe that plaintiff has satisfied the requirements of Kunk, and the failure to pinpoint the exact defendant that made the statement goes to the weight of the evidence rather than to its admissibility.
4. That the Trial Court erred in framing the issue as to whether failure of the appellee, Huey, to make a payment of $5,000.00 on or before July 1, 1985, would work a forfeiture of the timber deed, and further in finding, or at least apparently finding and holding as a matter of law,...
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