McCastle v. Scanlon

• Decision Date: 08 June 1953
• Docket Number: No. 29,29
• Citation: 337 Mich. 122,59 N.W.2d 114
• Parties: McCASTLE v. SCANLON et al.
• Court: Michigan Supreme Court

Page 114

59 N.W.2d 114

337 Mich. 122

McCASTLE v. SCANLON et al.

No. 29.

Supreme Court of Michigan.

June 8, 1953.

Reber & Reber, Fremont, for plaintiff and appellee.

Harold H. Smedley and Robert J. Danhof, Muskegon, for defendants and appellants.

Before the Entire Bench.

CARR, Justice.

The declaration filed by plaintiff in this cause alleged that on the 24th of May, 1951, the defendants were the owners of certain land in Muskegon county, and that a written agreement was executed by which they sold and conveyed to plaintiff all trees suitable for lumber, either standing or lying on the ground, on the premises in question, with permission to cut and haul the same within a period of one year. Plaintiff further claimed that he took possession of said timber and commenced to cut it, that defendants without justification repudiated the agreement, and that they refused to permit further operations thereunder. The pleading alleged also that plaintiff was engaged in the business of manufacturing and selling lumber, that he was purchasing the timber on defendants' property for use in his business, and that as a result of the defendants' refusal to allow him to proceed he sustained damages and loss of profits for which he sought recovery. Subsequently an amended declaration was filed, incorporating the averments of the original declaration except with reference to the matter of damages. It was the claim of plaintiff in the amended pleading that because of defendants' conduct plaintiff suffered the loss of the trees remaining on the property, that the value thereof was in excess of $1,000, and that he was entitled to recover such value.

Defendants filed an answer denying material averments in the declaration and also filed a cross-declaration, defendant Evelyn Scanlon claiming the right to recover damages because of an alleged assault and battery on her person by plaintiff, and both defendants seeking the right to recover for timber that they claimed had been cut on their property after the revocation of permission to plaintiff to proceed under the agreement. A motion to strike defendants' cross-action, or counterclaims, was submitted. The trial judge concluded that such claims did not arise out of the contract that was the basis of plaintiff's alleged cause of action, that they were based on alleged tortious acts on the part of plaintiff after defendants had, as they claimed, terminated the agreement of May 24, 1951, and that, considered as pleas in recoupment, the assertion by defendants of rights to affirmative recoveries was not permissible. Such determination was correct, and the trial judge properly refused to allow consideration of the counterclaims.

It appears from the pleadings and the proofs in the case that prior to the execution of the written agreement in controversy here the parties had, in August or September, 1950, entered into an oral arrangement under which plaintiff was granted permission to enter on the land of the defendants and to cut and remove timber. It is the claim of plaintiff that at that time he paid defendants the sum of $175, and that in the fall of 1950 he cut and removed approximately 3,500 feet of lumber. He did not continue with the operation during the winter, but in the late spring advised defendants that he wished to resume cutting. It was plaintiff's claim on the trial that after some conversation it was decided that the agreement between the parties should be put in writing, and that he should pay defendants as consideration the sum of $75. Thereupon, plaintiff prepared an instrument which was signed by the defendants and which read as follows:

'Dated this day of May 24th, 1951. Agreement by and between Carl Scanlon and wife, parties of the first part, and George McCastle, Jr., party of the second part. Parties of the first part agree to sell all trees suitable for lumber, either standing or lying on the ground, except some designated around buildings, on following description of land containing 35 acres, more or less, according to government survey, for the sum of one dollar and other valuable consideration, with permission to cut and haul same from said property for a period of one year from date.

'Description: East 20 acres of SW 1/4 of the SW 1/4 of Section 27, of Township 11 North, Range 15 West; SW 1/4 of SW 1/4 except East 20 acres and except South half of West 10 acres, section 27, of Township 11 North, Range 15 West.'

The principal question in the case involves the interpretation of the foregoing writing. It was plaintiff's theory on the trial in circuit court, as indicated by his amended declaration and by his testimony, that the agreement should be construed as a conveyance to him of the standing timber on defendants' property, subject to the exceptions indicated therein. Defendants contended that the agreement could not be construed as a grant or conveyance of the timber, and that in legal effect plaintiff had merely a license to enter on the property and to cut and remove trees so long as the license remained in effect. It was their claim that plaintiff had undertaken to convey to a third party rights that were personal to plaintiff under the agreement, and had in terms undertaken to sell to such party a part of the standing timber. Plaintiff's testimony on the trial disclosed that he had made such an agreement with one Morse, and had received by way of consideration the sum of $250. Thereafter Morse and others employed by him entered on the property for the purpose of cutting timber. Defendants forbade them to do so. Thereupon plaintiff undertook to resume cutting and was advised by defendants that he could not do so, and that his rights had been revoked. Such alleged revocation was pleaded by defendants in their answer, and the reason therefor indicated.

At the conclusion of plaintiff's testimony, defendants moved for a directed verdict on the ground that plaintiff had merely a license to cut and remove timber from their land, that no title to the standing timber had passed to him under the agreement, that the license was revocable, that plaintiff's arrangement with Morse constituted an attempted assignment of rights that were personal to plaintiff, and that defendants were justified in refusing to allow Morse to cut timber and likewise in refusing to permit plaintiff to resume operations. The motion was denied, and a subsequent motion made at the conclusion of plaintiff's proofs was also denied. Thereupon the case was submitted to the jury, the trial court specifically charging that plaintiff had the right to assign his interests under the contract to other persons, that his doing so was not a sufficient reason for the action of the defendants in refusing to permit plaintiff to continue under the agreement, that defendants were liable for damages, unless plaintiff or others exercising his claimed rights cut trees that were not suitable for lumber, and that the measure of damages if a verdict was returned in favor of plaintiff was the fair market value of the timber of which the plaintiff was deprived by the wrongful revocation of the agreement by the defendants at the time of such revocation in January, 1952. The jury returned a verdict in the sum of $1,000 and judgment was entered thereon. Defendants have appealed.

No claim is made that the oral agreement made in August or September, 1950, operated to pass title to the standing timber. Being an interest in land, such title could not have been conveyed other than by instrument in writing. C.L.1948, § 566.106, Stat.Ann. § 26.906; Wallace v. Kelly, 148 Mich. 336, 111 N.W. 1049. Plaintiff had merely a revocable license. Marshall v. Heselschwerdt, 304 Mich. 664, 8 N.W.2d 871. The payment by plaintiff to defendants of the sum of $175 does not change the situation in this respect.

May the written agreement of May 24, 1951, be construed as a conveyance of stanidng timber? It will be noted that the writing contains no words ordinarily found in a conveyance of an interest in real property. Neither was it executed with required formalities to permit it to be recorded. This Court has said in numerous decisions that a contract must be construed, if possible, to effectuate the intent of the parties. In the instant case such intent must be determined from the provisions of the written instrument. The Court may not construe the language used by the parties other than in its usual significance. It must be borne in mind also that the writing was prepared by plaintiff. The burden rests on him to sustain the theory under which his case was tried and submitted.

The situation in Curran v. Gordon, 169 Mich. 250, 135 N.W. 264, cited in Marshall v. Heselschwerdt, supra, was very similar to that in the case at bar. There the owner of property gave to the plaintiff a writing setting forth that for a valuable consideration she did thereby sell to him all the timber on a certain described parcel of land. Subsequently the owner of the property died and title thereto passed to her sons who made a contract with defendant Gordon to cut and remove the timber. Plaintiff brought suit in equity for the purpose of obtaining injunctive relief. A demurrer to the bill of complaint was overruled by the trial court and defendants appealed. It was the claim of defendants in support of their motion that the writing created merely a license to cut timber. In determining that the demurrer should have been sustained, this Court said:

'The writing executed by the parties was a bill of sale of the timber with a license to enter upon the lands and remove it. The timber until it was severed was a part of the realty. The writing does not attempt to convey any interest in lands. Therefore no title to the timber would pass until it was severed from the realty. When severed, it became personal property and passed by the bill of sale. As was siad in Greeley v. Stilson, 27 Mich. 153, 'it was the sale of a future chattel.' Such a license may be...