Philip A. Ryan Lumber Co. v. Ball

• Decision Date: 12 May 1915
• Docket Number: (No. 5481.)
• Citation: 177 S.W. 226
• Parties: PHILIP A. RYAN LUMBER CO. v. BALL.
• Court: Texas Court of Appeals

177 S.W. 226

PHILIP A. RYAN LUMBER CO. v. BALL.

(No. 5481.)

Court of Civil Appeals of Texas. San Antonio.

May 12, 1915.

Rehearing Denied June 9, 1915.

Appeal from District Court, Anderson County; John S. Prince, Judge.

Action by the Philip A. Ryan Lumber Company against P. D. C. Ball. From judgment for defendant on instructed verdict, plaintiff appeals. Reversed and remanded.

R. E. King, of Memphis, Tenn., and Thos. B. Greenwood, of Palestine, for appellant. Lyon & Swarts, of St. Louis, Mo., and Morris & Sims, of Palestine, for appellee.

CARL, J.

Appellant, Philip A. Ryan Lumber Company, a Tennessee corporation, sued appellee, P. D. C. Ball, who resides in St. Louis, Mo., to recover $66,500 damages by reason of an alleged breach of contract on part of appellee to sell appellant the timber on 12,000 to 15,000 acres of land on the Trinity river in Anderson and Freestone counties, Tex. An attachment was sued out and levied on appellee's lands, and a foreclosure of the lien thereby created was sought to be procured. The contract was executed in St. Louis, on March 20, 1912, and signed by the lumber company, by Philip A. Ryan, president, and by P. D. C. Ball in proper person. To this contract was attached a map of the land, showing also the proposed route of the railway to be constructed. The portions of that contract necessary to a discussion of the issues in this case are as follows:

"The vendor agrees to use his best efforts to obtain a right of way for a railroad from the southern terminus of the proposed railroad on the vendor's land, shown on the map hereto attached, to the north end of what is known as the `Salt Works Spur' on the International & Great Northern Railway, a distance of approximately six (6) miles, together with a connection with said railway at said Salt Works Spur, by which the lumber cut and carried from the said vendor's land may be transported to and conveyed over the International & Great Northern Railroad. It is understood and agreed that the obligations of the vendor and purchaser herein assumed shall only be imposed upon them respectively in the event that said vendor notifies the purchaser on or before the 15th day of April, 1912, that he has secured said right of way and connection.

"Immediately upon giving said notice to the purchaser, the vendor agrees with all reasonable diligence to commence the construction of a railroad at said north end of said Salt Works Spur and continue the construction of said railroad to the south terminus of the proposed road on the vendor's land shown on the plat hereto attached, and from then on under the terms hereof continue the construction of said road as indicated on said plat.

"It is understood and agreed that the line of the proposed railroad shown on the map hereto attached is not absolute, but is intended, so far as it can, to indicate the line of the proposed road, it being understood that the vendor in building said road through his land shall have the right to divert the line of construction so as to avoid swamps or other places involving difficulties or large expense of construction.

"It is understood that the vendor in building said railroad through his land shall be under obligation only to build said railroad from time to time a distance of one (1) mile ahead of the timber from time to time being cut by the purchaser.

"It is understood and agreed that the railroad shall be constructed at the expense of the vendor, shall be of standard gauge, using a rail of not less than fifty-six (56) pounds, and shall be built in the manner adapted to the purpose of this contract. * * *

"The purchaser hereby agrees to cut, during each year of the term of this contract, not less than ten million (10,000,000) feet, log scale, per year, and shall pay the vendor therefor at the rate of two dollars ($2.00) per thousand feet, log scale, for all oak and ash timber cut, and one dollar ($1.00) per thousand feet, log scale, for all cottonwood and elm timber cut. The vendor agrees to cut all oak, ash, cottonwood and elm timber on said land which is ten (10) inches or more in diameter, sixteen (16) feet from the stump. The vendor (purchaser) has no right to cut any timber other than that just herein enumerated and described.

"The obligation of the purchaser to pay for such timber is in no way conditioned upon the purchaser's removal of the same, but the obligation attaches as soon as and when the timber is cut.

"The obligation of the purchaser to cut the timber shall begin as soon as the vendor has constructed a mile of said railroad within the vendor's land; and the purchaser's obligation to cut the amount of timber herein agreed upon shall only begin to run from said time. Provided, however, and it is understood, that the purchaser may, at his option, commence to cut timber prior to such time, in which event, the obligation shall begin to run from said time."

The road was to remain Ball's property; but, by the contract, the lumber company was given the right to use same, furnishing its own equipment, and also to have right of ingress and egress to and from and over the land for the purpose of cutting, milling, and shipping the lumber from the timber, and appellee was to be relieved from liability for accidents by reason of appellant operating the railroad. In the paragraph describing the kind of timber to be cut, the word, "vendor" was written for "purchaser."

The petition charges that on April 11, 1912, and on April 15, 1912, the plaintiff and defendant, by mutual consent, agreed to abandon renounce, and relinquish the clause and term of the written contract to the effect that the obligations thereby assumed and created should be imposed upon the parties respectively only in the event that the defendant notified plaintiff before April 15, 1912, that he had secured the right of way for said railroad from the Salt Works Spur to defendant's land, and a connection at said spur, with the International & Great Northern Railroad, and that thereupon both parties became bound by their respective obligations under the contract according to its terms, with said waived clause eliminated. It is also pleaded that on said dates the defendant agreed with plaintiff in writing to waive said clause. And it is further pleaded that on or about May 28, 1912, and May 30, 1912, the defendant did secure such right of way from said Salt Works Spur to the southern terminus of the proposed railroad, together with connection with the International & Great Northern Railroad, and on or about said dates the defendant notified and advised the plaintiff that he had secured said right of way and railroad connection. It is alleged that the time to secure said right of way and railway connection had been, by mutual consent, extended to May 28th, May 29th, and May 30th, and even until July 6, 1912.

The defendant pleaded in abatement of the suit the fact that the plaintiff was a foreign corporation and had not secured a permit to do business in Texas, which the court overruled, as well as special exception to the same effect, and one invoking the statutes of frauds. And an exception, No. 15, was sustained against plaintiff's right to recover $5,000 paid one Craig by plaintiff as commissions. Defendant joined issue on the material allegations, and specially pleaded that plaintiff had employed Craig, who was defendant's agent and paid him $5,000 commission; that defendant was in ignorance of the fact that Craig was so acting as plaintiff's agent also at the time the contract was entered into; and that therefore said contract was null and void.

In its replication, plaintiff denied that it had repudiated the contract or refused to go forward with same; and denied any collusion with Craig, and set out that Craig, who was highly recommended to the company, represented that he and appellee had up a colonization scheme by which they were to sell out and colonize about 52,000 acres of lands belonging to appellee, for a commission which would amount to several dollars per acre, and that Ball would have to sell the timber before the land could be colonized, and that Ball would pay no commission for selling the timber. Therefore Craig represented that whoever bought the timber would have to pay the commission, and thereupon appellant agreed to pay the commission of $5,000 in the event of the purchase by appellant of such timber, and that plaintiff had no knowledge that defendant was not fully advised as to the agreement between appellant and Craig as to the commission, and that, after full knowledge concerning the commission arrangement, defendant ratified and acquiesced in the contract of sale of the timber. It was also pleaded that the defendant made the contract for himself in person and not by an agent, and that, regardless of any action of Craig's, same was a binding contract on defendant's part.

A jury was impaneled to try the cause; but, after the plaintiff had closed, the court instructed a verdict for the defendant, and the lumber company has appealed. So it becomes necessary that we inquire as to whether there was evidence about which reasonable minds might differ on the question as to waiver of the time limit on notice to be given provided in the contract.

The evidence upon which the appellant relies, as showing an extension of the contract and modification by agreement as to the time in which notice was to be given that the railway right of way and connection had been secured as provided in the contract, consists largely of letters and telegrams passing between Philip A. Ryan, president of the lumber company, and appellee Ball; and between Craig, the agent, and Hall, the representative, of P. D. C. Ball at Palestine, Tex.

E. H. Craig, of Columbus, Ohio, sent out a letter on February 21, 1912, to Philip A. Ryan Lumber Company, among others, calling attention to the timber lands of appellee in Texas. On February 19, 1912, two days prior to sending out said letter, Craig...