Massee & Felton Lumber Co. v. Macon Cooperage Co.
| Decision Date | 15 January 1932 |
| Docket Number | 21543. |
| Citation | 162 S.E. 396,44 Ga.App. 590 |
| Parties | MASSEE & FELTON LUMBER CO. v. MACON COOPERAGE CO. |
| Court | Georgia Court of Appeals |
Syllabus OPINION.
Purported deed conveying timber requiring pay only for timber cut grantor retaining option to stop cutting for violation of agreement, held not to pass absolute title preventing grantor's action against trespassing third person cutting such timber.
Such instrument, which provided that the amount recited therein as being paid in part consideration of the privileges granted was a mere deposit by the grantee as security for his faithful performance of the contract, and not a part of the purchase price, and that the privileges granted should last for two years, with option for renewal in grantee, did not part with the title to the timber, so as to preclude a suit for damages against a third person trespassing on the premises and cutting the timber, but conveyed only a right to use the timber, according to the terms of the contract.
Employer of independent contractor to do work not in itself unlawful or dangerous to others is not liable for torts of subcontractor or subcontractor's servants (Civ. Code 1910, § § 4414, 4415).
Test for determining whether employee is independent contractor is whether contractor has right to control time and manner of executing work, as distinguished from right merely to require results in conformity to contract.
Employer of independent contractor to cut employer's timber held not liable for contractor's trespassing in cutting another's timber on adjoining land.
Employer's secretary's statement, that he would stop its contractor's trespassing held no acknowledgment that contractor was servant.
Employer's secretary's statement that he would stop its contractor's trespassingin cutting another's timber held no ratification of trespass; absent proof showing employer received any such timber.
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.
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...
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