J. J. White Lumber Co. v. McComb City Turpentine Co.

• Decision Date: 13 March 1916
• Citation: 110 Miss. 848,71 So. 5
• Court: Mississippi Supreme Court
• Parties: J. J. WHITE LUMBER COMPANY v. MCCOMB CITY TURPENTINE COMPANY

71 So. 5

110 Miss. 848

J. J. WHITE LUMBER COMPANY
v.
MCCOMB CITY TURPENTINE COMPANY

Supreme Court of Mississippi

March 13, 1916

March, 1916

APPEAL from the chancery court of Pike county, HON. R. B. MAYES, Special Chancellor.

Bill by the McComb City Turpentine Company against J. J. While Lumber Company. From a decree for complainant, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and affirmed in part.

J. S. Sexton and W. B. Mixon, for appellant.

Price & Price and Jr. Talley, for appellee.

OPINION [71 So. 6]

[110 Miss. 849] HOLDEN, J.

This is an appeal from a decree of the chancery court of Pike county, Hon. Robert B. Mayes, special chancellor. The appellee, McComb City Turpentine Company, complainant in the court below, filed its bill, claiming, among other things, that the appellant, J. J. White Lumber Company, defendant below, leased to appellee, through Carr Bros., for turpentine purposes, six thousand, nine hundred and thirteen acres of merchantable pine timber, suitable for turpentine purposes, for which it paid appellant twenty-five thousand, fifteen dollars and eighty cents, and that appellant failed to deliver the quantity, six thousand, nine hundred and thirteen acres of pine timber as contracted; that the shortage in the delivery amounted to one thousand, four hundred and eleven acres, which was a breach of the contract--and seeking to recover the purchase price and damages of appellant therefor. The lumber company, defendant below, answered, and, among other things, contended that appellee could not recover for the alleged shortage of one thousand, four hundred and eleven acres, for two reasons: First, that as a matter of fact, under the contract of lease, there is no shortage of one thousand, four hundred and eleven acres, or any amount whatever, and if there be any shortage at all, it is inconsiderable; second, that the contract of lease is a contract "in bulk" or "in gross," and that the shortage or variation, if any, is allowable to the lessor, under the contract here involved. There was a decree in favor of appellee as to the shortage of one thousand four hundred and eleven acres, and for other damages claimed in the bill, and appellant prosecutes this appeal. We here set out the material parts of the contract involved:

This contract and agreement made and entered into in duplicate this the 27 day of October, A. D. 1905, by and between the J. J. White Lumber Company, a corporation existing under the laws of the state of Mississippi, [110 Miss. 850] herein called the party of the first part, and Carr Bros., composed of the individuals J. A. Carr and A. S. Carr, partners of Hattiesburg, Miss., hereinafter called the parties of the second part. Witnesseth: The party of the first part for and in consideration of the rent hereinafter reserved to be paid and the covenants to be performed by the parties of the second part, does by these presents hereby demise, farm, let and lease unto the said parties of the second part, their heirs or assigns all of the pine timber suitable for turpentining purposes located on the lands hereinafter described, which lands are owned by the party of the first part, and all of the merchantable pine timber suitable for turpentining purposes on the lands hereinafter described, upon which the party of the first part owns on them merchantable pine timber to wit:

Sec.	Acres.
S 1/2 of S 1/2	22	120
S 1/2 of S 1/2	23	150
W 1/2 of NE 1/4, SW 1/4, W 1/2 of SE 1/4, and
SE 1/4 of SE 1/4	25	340
All on section	26	480
All on section	27	520
S 1/2 of NE 1/4	28]	400
S 1/2	28]
E 1/2 of SE 1/4	29	80
SE 1/4	31	50
S 1/2	32	200
All on	33	630
N 1/2 and N 1/2 of SE 1/4	34]	360
N 1/2 of NW 1/4 of SW 1/4	34]
N 1/2 and N 1/2 of S 1/2	35]	560
SW 1/4 of SW 1/4 and S 1/2 of SE 1/4	35]
W 1/2 of N 1/2 and S 1/2 of NW 1/4	36]	360
SW 1/4 of NE 1/4 and N 1/2 of SE 1/4	36]
All in Township One (1) North of
Range Six (6) East, Amite county,
Miss.
NE 1/4 and NW 1/4 of NW 1/4	31]
S 1/2 of NW 1/4, E 1/2 of SW 1/4, and W 1/2	]	440
of SE 1/4	31]
Township One (1) North of Range 7
East, Pike County, Mississippi.
N 1/2 of NW 1/4 and SW 1/4 of NW 1/4	1	120
NE 1/4 of NW 1/4, E 1/2 of NW 1/4 of NW 1/4	12	50
Township One (1) South, Range Six
(6) East, Tangipahoa Parish
Louisiana.
S 1/2 of NE 1/4, E 1/2 of NW 1/4, and E 1/2	2]
of W 1/2 of NE 1/4	]	400
SW 1/4, NW 1/4 of SE 1/4	2]
E 1/2 of SW 1/4 of SE 1/4	3	16
SE 1/4 of NE 1/4 and NE 1/4 of SE 1/4	9	40
NE 1/4, S 1/2 of NW 1/4, and NW 1/4 of SW 1/4	10	220
SW 1/4 of NW 1/4 and NW 1/4 of SW 1/4	11	40
W 1/2 of N 1/4	4	50
N 1/2 of NE 1/4 and S 1/2 of SE 1/4	5	60
All in section	37	437

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