Nathan B. Ross v. J. W. Hamilton

• Decision Date: 12 May 1921
• Citation: 113 A. 781,95 Vt. 234
• Parties: NATHAN B. ROSS v. J. W. HAMILTON ET AL
• Court: Vermont Supreme Court

113 A. 781

95 Vt. 234

NATHAN B. ROSS v. J. W. HAMILTON ET AL

Supreme Court of Vermont

May 12, 1921

Special Term at Brattleboro, February, 1921.

ACTION OF CONTRACT to recover damages for breach of agreement for sale and purchase of standing timber. Trial by jury at the June Term, 1920, Bennington County, Wilson, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the case.

Affirmed.

J K. Batchelder for the defendants.

Orrin B. Hughes for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

POWERS

This is an action of contract in the form of general assumpsit with a special complaint for damages for the breach of a contract for the purchase of certain standing timber and pulpwood. The answer contained a general denial and set up as defences the statute of frauds, and the fact that the plaintiff had taken possession of and sold the timber and pulpwood in question, after it had been cut by the defendants. A trial by jury resulted in a verdict for the plaintiff, and the defendants allege error.

To establish the contract relied upon, the plaintiff offered in evidence a writing dated August 22, 1918, signed by himself but not by the defendants, by the terms of which he sold to them certain timber in Winhall at $ 6 per cord for the pulpwood and $ 15 per thousand feet for the timber, and, among other things, gave them six months in which to remove the timber. This contract evidenced the payment of $ 200 thereon, and provided that the balance should be paid when the timber left the woods.

The defendants objected to the admission of this writing on the ground that it purported to convey an interest in land, and, not being signed by the parties here to be charged, it was wholly ineffective under G. L. 1876. The objection was overruled, the writing was admitted, and the defendants excepted.

There was evidence fairly and reasonably tending to show that the defendants, acting under this writing, entered upon the land referred to and cut all the timber involved in this suit, removed a part of it, and left the remainder on the lot, some in piles and some scattered about.

In these circumstances, the writing was admissible. Though such contracts are for the sale of an interest in land and required by the statute of frauds to be in writing and signed by the party to be charged (Buck v. Pickwell, 27 Vt. 157), and though this writing could not, so long as it remained executory, be made available in any way as a contract, it was predicated upon a valuable consideration, and as fast as and to the extent that it became executed by the defendants actually severing the trees from the freehold, it became binding and enforceable. The title to the trees so cut vested in the defendants, and they became liable to pay the contract price. Yale v. Seely, 15 Vt. 221; Buck v. Pickwell, supra; Cady v. Sanford, 53 Vt. 632. Until the defendants so proceeded under it, the writing operated as a mere license to enter to cut and remove the timber. Their liability to pay as aforesaid is unaffected by the fact that they did not sign the writing; for, by entering and acting under it as they did, they adopted it and became bound by it as if they had signed it. Patchin v. Swift, 21 Vt. 292.

The defendants suggest that the evidence in regard to their cutting had not been received when the writing was admitted, but, if this was so, they were not harmed by its premature admission, and their exception is unavailing.

The defendants moved for a verdict and saved an exception when their motion was overruled. Though stated in different ways the grounds of their motion were that the resale of the property by the plaintiff was wholly illegal, and amounted in law to a rescission of the contract and a release of the defendants therefrom. They also excepted to the court's ruling that the defendants were liable for the lumber at the agreed price, less what should be allowed them. When the defendants failed to pay for and remove the wood and timber within the time limited, they broke the contract. The requirement was that they should pay when the stuff was drawn off, and it was to be drawn off within the six months. So their failure was not only as to removal, but also as to payment. This was an essential term of their engagement. In these circumstances, the plaintiff was not obliged to stand by while the property was utterly wasted, and take his chances of getting his damages out of the defendants. 2 Kent 504. He could lawfully resell the property remaining on the lot and bring this action for damages. This rule is fully and firmly established. Darby v. Hall, 3 Penne. 25, 50 A. 64; McLean v. Richardson, 127 Mass. 339; Grist v. Williams, 111 N.C. 53, 15 S.E. 889, 32 Am. St. Rep. 782, and note; Atwood v. Lucas, 53 Me. 508, 89 A. D. 713; General Electric Co. v. National Contracting Co., 178 N.Y. 369, 70 N.E. 928; Smith & Son v. Bloom, 159 Iowa 592, 141 N.W. 32. It was said in Putnam v. Glidden, 159 Mass. 47, 34 N.E. 81, 38 Am. St. Rep. 394, quoting from Dustan v. McAndrew, 44 N.Y. 72, that, when a purchaser declines to receive property sold him, the vendor has his choice of three remedies: (1) He may store or retain the property for the vendee, and sue him for the entire purchase price; (2) he may sell the property acting as the agent for this purpose of the vendee and recover the difference between the contract price and the price obtained on such resale; or (3) he may keep the property as his own, and recover the difference between the market price at the time and place of delivery and the contract price. This is the doctrine of Rosenbaum v. Weeden, Johnson & Co., 18 Gratt. 785, 98 A. D. 737, wherein the matter is fully discussed, and of Cook v. Brandeis, 60 Ky. 555, wherein it is said that "these...