Paullus v. Yarbrough
Decision Date | 09 December 1959 |
Citation | 79 A.L.R.2d 1222,347 P.2d 620,219 Or. 611 |
Parties | , 79 A.L.R.2d 1222 Claude F. PAULLUS, Respondent, v. Fred S. YARBROUGH and Hilda I. Yarbrough, Appellants. |
Court | Oregon Supreme Court |
William E. Taylor, Gold Beach, argued the cause for appellants. On the brief were Taylor & Miller, Gold Beach.
A. J. Newhouse, Coos Bay, argued the cause for respondent. On the brief were McKeown, Newhouse & Johansen, Coos Bay.
Before McALLISTER, C. J., and PERRY, O'CONNELL and REDDING, JJ.
This is a suit in equity brought by the buyer named in a timber contract to enjoin the sellers from preventing the buyer from continuing logging operations in accordance with the terms of the contract. The plaintiff also seeks to recover $9,120 damages alleged to have resulted from defendants' interference with plaintiff's logging operations.
The trial court entered a decree enjoining the defendants from preventing the plaintiff from going upon the defendants' land for the purpose of cutting and removing the poles and logs thereon in accordance with the terms of the contract. The prayer for damages was denied. The defendants appeal from the decree granting the injunction, contending that the trial court erred in the following respects; (1) in not holding that the agreement in this suit created a license revocable by defendants, (2) in decreeing in effect specific performance of an agreement respecting personal property, (3) in granting an injunction to enforce an agreement which lacks mutuality and which is too indefinite and uncertain to make practical its enforcement, (4) in failing to find that plaintiff breached the agreement, thus entitling defendants to rescind it in accordance with its terms.
The contract, entitled 'Timber and Pole Contract' read as follows:
'This Agreement made and entered into this 11th day of February 1955, by and between Fred S. Yarbrough and Hilda I. Yarbrough, husband and wife, of Norway, Coos County, Oregon, hereinafter known and designated as the Sellers, and Claude F. Paullus, of Myrtle Point, Coos County, Oregon, hereinafter known and designated as the Buyer.
'Witnesseth that for and in consideration of the covenants and agreements herein contained to be kept and performed by the parties hereto, and the payments to be made by the Buyer to the Sellers as are hereinafter set forth; the Sellers do hereby agree to sell to the Buyer, and the Buyer does hereby agree to purchase from the Sellers all of the pole timber and all of the standing merchantable red fir and white fir timber upon the following described real property, to-wit:
'The West Half of the Southwest Quarter, the Northeast Quarter of the Southwest Quarter and the Southeast Quarter of the Northwest Quarter, Section 27; the South Half of Section 28; the Northwest Quarter and the North Half of the Northeast Quarter, Section 33; and the Northwest Quarter of Section 34; all in Township 28 South, Range 12 West of the Willamette Meridian, Coos County, Oregon.
'Buyer agrees to assume all responsibility for any and all men employed by him on said premises, and to cover said men by Workmen's Compensation, and shall promptly pay all sums becoming payable under any government agency by reason of any work done for the logging of said poles or timber, and shall not permit any lien or lienable claims of any kind or nature to accrue upon or attach against any timber or poles herein agreed to be sold, and in the event such a lien or claim of a lien being filed or made upon the same the Buyer agrees forthwith to discharge said property therefrom.
'In the event the Buyer shall fail to comply with each and every term and condition herein mentioned to be kept and performed by him, and in the event such default shall not be remedied within 20 days after written notice thereof from Sellers to the Buyer, then and in that event the Sellers shall have the right to declare this contract null and void and of no further force or effect and no sums which have been paid hereunder shall be refunded to the Buyer.
'In the event any suit, action or proceedings shall be instituted hereunder or commenced for the purpose of enforcing, terminating, reforming, or cancelling this agreement or any part thereof, or any of the rights, duties, or liabilities arising hereunder it is agreed that the prevailing party shall, in addition to the costs and disbursements provided by Statute, recover such sum as the Court may adjudge reasonable as attorney's fees.
'This contract shall apply to and bind the parties hereto, their heirs, executors, administrators and assigns jointly and severally.
'In Witness Whereof the parties hreto have hereunto set their hands and seals the day and year first herein written.'
The defendants contend that the foregoing agreement created no more than a revocable license in the buyer to remove merchantable timber from the described land.
The instrument clearly states that the sellers agree to sell and the buyer agrees to purchase all of the standing merchantable timber. Standing alone this would leave no doubt that a breach of contract would result if the seller refused to permit its removal or if the buyer failed to pay for all such timber, whether or not it was removed. However, two other clauses in the instrument cast doubt upon such an interpretation. The first of these is the provision relating to payment. The buyer is obligated to pay a unit price 'for all poles removed' and a similar provision is made with respect to the saw logs. This could be interpreted to mean (1) that the buyer was not obligated to pay for any poles or logs unless he removed them, or (2) that he was obligated to pay for all of the timber, whether it was removed or not but that if he did remove any of it payment would be made as it was removed. Accepting the first of these alternatives, the buyer's interest would be described as follows. First, in terms of a property interest, he would acquire a license to enter the sellers' land. The privilege to do so would last only so long as the sellers did not revoke it. Secondly, in terms of contract law, since by hypothesis the seller has the power and privilege to prohibit the further cutting of the timber, absent an estoppel, the buyer has no contract remedies in the event the power is exercised.
In the instant case the briefs and arguments of both plaintiff and defendants are built around the assumption that the agreement created a revocable license; the plaintiff arguing that the license became irrevocable by estoppel and the defendants contending that the plaintiff had not changed his position substantially in reliance upon the agreement.
We are of the opinion that the agreement created more than a license to cut timber. Although the agreement calls for payment per unit for poles and logs removed, we construe this provision to describe only the method of payment and not the buyer's obligation to pay. The agreement obligates the buyer to purchase 'all' of the merchantable timber upon the described land. The buyer also obligates himself to begin logging operations promptly and to continue such operations 'until such time as all the timber herein agreed to be purchased has been removed * * *.' If plaintiff had failed to proceed diligently with the logging operation, or if at...
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