Lufburrow v. Everett

• Decision Date: 22 July 1901
• Citation: 39 S.E. 436,113 Ga. 1054
• Parties: LUFBURROW. v. EVERETT.
• Court: Georgia Supreme Court

39 S.E. 436

113 Ga. 1054

LUFBURROW.

v.EVERETT.

Supreme Court of Georgia.

July 22, 1901.

SALE OF TIMBER—ACTION FOR PRICE—INJUNCTION.

1. The trial below was conducted without error of law, and a verdict for the plaintiff was demanded by the evidence. The court therefore erred in granting a new trial.

2. The verdict authorized the decree that the court below rendered, rescinding the contract between the parties, restoring the land to the plaintiff, and granting the perpetual injunction prayed for by the petitioner.

(Syllabus by the Court.)

Error from superior court, Effingham county; P. E. Seabrook, Judge.

Action by Caroline Lufburrow against Joel Everett. Verdict for plaintiff. Prom an order granting a new trial, she brings error. Reversed.

D. H. Clark and Lester & Ravenel, for plaintiff in error.

H. B. Strange, for defendant in error.

LEWIS, J. On March 13, 1890, a written contract was executed by Mrs. Caroline Lufburrow and Joel Everett, in which she conveyed to him the timber on a tract of land owned by her. Afterwards, in the same year, he moved his sawmill to the land and began cutting the timber. In 1897 she sued him for $400 and interest alleged to be due under the contract, and prayed that he be enjoined from cutting timber on the land. The contract stipulated for the conveyance of the timber in consideration of $600, upon the following terms: Two hundred dollars was to be paid cash, and two notes, each for $200, were to be given by Everett, the first payable 90 days after Everett's tram road should reach the Central Railroad, which was to be during the same year (1890), and the second payable 90 days after the payment of the first. It was agreed that Everett should have sufficient time to cut the timber off of the land, and that his mill might remain on the land "to cut other timber as he might thereafter have." Everett bound himself to locate his tram road on the tract of land, and to complete it within 90 days after it was so located, "should no providential causes hinder him from so doing." The petition alleged that when the contract was made the defendant told the plaintiff that he intended at once and continuously to engage in a sawmill business, and would not want more than a reasonable and sufficient time in which to cut the suitable sawmill timber from the land, and because of this statement no exact time was stipulated when he should cease cutting and remove from the land, but she then understood and believed that, when he should have remained on the land a sufficient length of time, he would have cut all the merchantable sawmill timber on it, and would give her possession of the land; that he still remains in possession of it, and refuses to allow her to go upon it for turpentine or other purposes, though he has been in exclusive and uninterrupted possession of it

ever since the date of the contract, engaged in cutting the timber, and for a sufficient length of time to have cut and sold all the sawmill timber on the land, and, if he has not cut all the timber, it is his own fault; that he paid her $200 of the contract price March 13, 1890, but he has never given either of the notes provided for in the contract, nor paid the remaining $400 due, and refuses to do so, assigning as a reason that he. has never built the tram road, and that the contingency has not occurred when he should give the notes or pay the money. The defendant in his answer set up that he had fully complied with the contract as to the payment of the purchase money; that he had paid the plaintiff $478.30 as purchase money, and had cut only about an eighth of the sawmill timber on the land. He alleged that he put his...