Johnson v. Virginia-Carolina Lumber Co.

• Decision Date: 17 July 1908
• Docket Number: 807.,806
• Parties: JOHNSON v. VIRGINIA-CAROLINA LUMBER CO. SMITH v. SAME.
• Court: U.S. Court of Appeals — Fourth Circuit

163 F. 249

JOHNSON v. VIRGINIA-CAROLINA LUMBER CO.

SMITH v. SAME.

Nos. 806, 807.

United States Court of Appeals, Fourth Circuit.

July 17, 1908

Edward R. Baird, Jr., for plaintiffs in error.

R. T Thorp and Jno. N. Sebrell, for defendants in error.

Before PRITCHARD, Circuit Judge, and BOYD and DAYTON, District Judges.

DAYTON District Judge.

These two cases grew out of the same transaction. By consent of counsel the second was determined upon the testimony adduced in the first, and they may very properly be disposed of together here.

On January 10, 1906, T. H. Barrett, L. W. Thorpe, V. D. Thorpe G. P. Vick, and J. G. Majette were associated together as partners under the firm name of the Virginia-Carolina Lumber Company, and as such were the owners of a lumber plant and certain timber rights, situate in Nash and Franklin counties N.C. On that day A. R. Smith went to Mr. Barrett, the president of the company, and informed him that he believed he could effect a sale of the property through G. Fred Johnson. Thereupon two conditional contracts or options were executed by Barrett, as president, on behalf of the company the one granting to Johnson, or his assigns, 'for a period of 60 consecutive days (said 60 days to commence at the time we consent to let you, or your assigns, commence to examine the property hereinafter mentioned) the privilege to, at any price not less than $145,000," sell the said plant and timber holdings. This option to sell then provides for the terms of payment, if sale be made, and for the sale of the logs and lumber on the yards in such event, and then stipulates:

'We hereby agree to quote any price you may name (and no price except that which you name) for the aforesaid property to any prospective purchaser you may bring us, provided that price is not less than $145,000, and we further agree that we will not sell to him, directly or indirectly, at any time, the aforesaid property without your consent.'

The further provision is then made that Johnson was to have all over $145,000 for which he might sell the property, to be added by him in the sale to the cash payment required. The second contract was with Smith, and simply provided that, if a sale of the property was made by Johnson under the conditions of the writing just referred to, the company would pay him (Smith) out of the cash payment $5,000.

On March 24, 1906, Johnson by writing gave to the Mason-Miranda Company of Norfolk, Va., the privilege of selling the property upon conditions substantially the same as those contained in his option to sell from the lumber company limiting, however, such privilege to April 15, 1906, unless the Mason-Miranda Company should have a prospective purchaser examining the property by that time. Johnson notified Barrett, president of the lumber company, that the Mason-Miranda people were the ones through whom he hoped to sell the property. On April 7th following the Mason-Miranda Company gave to Frank J. Saxe, a New York broker, an option substantially in the terms of theirs from Johnson, and Saxe secured Tremaine to make an examination of the property with a view to purchasing it. This examination by Tremaine commenced on April 12, 1906, as Saxe by telegram notified the Mason-Miranda Company, and it was completed before May 7, 1906; for on that day Saxe notified the Mason-Miranda Company that Tremaine absolutely declined to pay the $165,000 asked for the property and Saxe surrendered his option. On May 10th, in reply to a letter from Miranda, Saxe...