Massee & Felton Lumber Co v. Macon Cooperage Co

• Decision Date: 15 January 1932
• Docket Number: No. 21543.,21543.
• Citation: 44 Ga.App. 590,162 S.E. 396
• Court: Georgia Court of Appeals
• Parties: MASSEE & FELTON LUMBER CO. v. MACON COOPERAGE CO.

44 Ga.App. 590

162 S.E. 396

MASSEE & FELTON LUMBER CO.

v.MACON COOPERAGE CO.

No. 21543.

Court of Appeals of Georgia, Division No. 2.

Jan. 15, 1932.

Error from City Court of Macon; C. H. Hall, Judge.

Action by the Massee & Felton Lumber Company against the Macon Cooperage Company. To review the judgment for defendant, plaintiff brings error.

Affirmed.

Hall, Grice & Bloch and Ellsworth Hall, Jr., all of Macon, for plaintiff in error.

Brock, Sparks & Russell, of Macon, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J.

1. An instrument executed in the form of a deed, and which recites that the grantor therein has "granted, bargained, sold, aliened, conveyed and confirmed" unto the grantee all the merchantable timber of specified sizes located on a described tract of land, but which requires the grantee to pay only for timber actually cut, and provides that the rights and privileges conveyed shall exist for a term of two years, but that the grantee shall have the privilege of renewal for another two years upon the payment of a specified sum, and further provides that upon the failure of the grantee to make settlements monthly for timber cut, or upon his violating a provision of the instrument requiring him to cut all timber of the sizes specified from any part of the premises upon which operations are begun, and not to select the better timber, the grantor may at its option stop further cutting of timber, construed according to the manifest purpose and intent of the parties, does not pass to the grantee the absolute title to the timber described, but only a license to use it for the purpose stated during the period specified in the contract. Johnson v. Truitt, 122 Ga. 327, 50 S. E. 135. And see Lott v. Denton, 146 Ga. 363, 364, 91 S. E. 112; Treisch v. Doster, 171 Ga. 525, 156 S. E. 231; Harrell v. Williams, 159 Ga. 230, 235, 125 S. E. 452. The instant case is distinguishable from Camp v. Horton, 131 Ga. 793, 63 S. E. 351, and Jones v. Graham, 141 Ga. 60, 80 S. E. 7, in that in each of those cases the instrument construed as a conveyance of timber recited a gross consideration for the entire timber conveyed, whereas in the instant case the amount to be paid was governed by the amount of timber cut, and the right of the grantor to stop operations at any time in the event of a violation by the grantee of certain terms of the instrument was retained. The amount recited in the instrument as being paid in part consideration of the privileges granted was, by the terms of the instrument itself, a mere deposit by the grantee as security for his faithful performance of the contract, and in no sense paid as the purchase price for the timber. Accordingly, in the instant case, the grantor named in the instrument referred to did not, by reason of such conveyance, part with title to the timber growing on its premises so as to preclude a suit for damages against a third person trespassing thereon and cutting the timber.

2. Where a corporation contracts with an individual, exercising an independent employment, for him to do a work not in itself unlawful or attended with danger to others, such work to be done according to the contractor's own methods and not subject to the employer's control or orders, except as to results to be...