Plummer v. Reeves

• Decision Date: 06 May 1907
• Citation: 102 S.W. 376,83 Ark. 10
• Parties: PLUMMER v. REEVES
• Court: Arkansas Supreme Court

102 S.W. 376

83 Ark. 10

PLUMMER v. REEVES

Supreme Court of Arkansas

May 6, 1907

Appeal from Phillips Circuit Court; Hance N. Hutton, Judge affirmed.

Judgment affirmed.

H. F Roleson, for appellants.

The court erred in construing the contract under which the timber was cut from other lands. Parol evidence is admissible to show that the parties considered time of the essence of the contract. 1 De G. & Sm. 444; 50 Am. Dec. 600, and note to same; 2 Barb. 270. There could have been no other object in inserting the clause limiting the time in which the timber was to be removed from the land. 1 Sandf. Ch. 52; 2 Barb 622; 6 Hun, 32; 69 N.Y. 269; 89 Me. 404; 36 A. 631; 1 Beach, Mod. Cont. Law, pp. 743, 747, 749; Chitty on Cont., 433 and note; 26 N.W. 488; 85 N.W. 570. The same would be true of a reservation by a vendor of the timber on lands, the same to be removed by a certain date. 35 Am. Rep. 683; 10 Metc. 155; 102 Mass. 275; 69 N.Y. 264. Where time is of the essence of the contract, the vendee is entitled to that part of the timber which he cuts and removed within the term mentioned. 6 Me. 81; 61 Me. 141; 13 Id. 122; 102 Mass. 375; 35 Vt. 19; 43 N.H. 277; 25 N.W. 170.

John I. Moore, for appellee.

A deed of standing timber to be removed within ten years passes the title, and does not constitute a mere license to take off chattels within the time limited. 22 L.R.A. 641. Failure to remove logs after they are cut within the time named in the contract for the removal of timber within a definite time does not forfeit the title. 32 L.R.A. 102; 27 Id. 434. In entering on the land within a reasonable time after the time mentioned the contract has expired for the removal of timber already cut might make one liable in trespass quare clausum for entry, but not for the value of the trespass. 20 Am. Rep. 119. The timber may be removed after the time limit has expired. 32 Am. Rep. 193; 55 L.R.A. 513.

OPINION

RIDDICK, J.

This action was brought by J. A. Plummer and others against W. D. Reeves, to recover $ 5,099.74 as damages for the taking and conversion of certain gum and cottonwood logs belonging to plaintiffs. The defendant appeared, and upon his motion the plaintiff was required to make his complaint more definite and certain as to the time when and the place where the logs were taken and converted. The plaintiffs thereupon filed an amendment to their complaint, in which they alleged that the logs converted by defendant were taken from section 6, township 1 north, range 5 east, and from other lands described, and that they were removed subsequent to the 27th day of May, 1904, some as late as the spring of 1905.

The defendant denied that plaintiffs were the owners of the logs alleged to have been converted, or that he had taken or converted any logs owned by plaintiffs; and by way of counterclaim he alleged that plaintiffs had taken and converted logs belonging to defendant of the value of $ 200, on account of which he asked judgment for that amount.

On the trial it was shown that plaintiffs were the owners of the lands described in the complaint; that the defendant had without right or authority cut timber on section six belonging to plaintiff and had hauled the logs to the bank of the river and piled them there for shipment at a point known as "Shack Durham's place." After the logs had been placed there, one of the plaintiffs ascertained that the logs had been cut, and informed the defendant that his agents had cut this timber from land of plaintiffs. The defendant admitted that this had been done through mistake, and offered to buy the logs, but they could not agree on a price. Plaintiffs then threatened to bring replevin for the logs and defendant told him to take them, and plaintiffs accepted them. At this time the logs were supposed to be on the bank of the river, but the river was overflowed at that time, and it was some weeks or months afterwards before the plaintiffs undertook to remove them. When the logs were scaled before being rafted, it was ascertained that they did not measure as many feet as the defendant had previously admitted that he had cut. The theory of the plaintiffs to explain this shortage is that the defendant removed some of the logs after they were piled on the river bank. The explanation of the defendant is that, after the logs were turned over to the plaintiffs, they were washed away or floated off by the overflow from the river. The defendant introduced testimony tending to show that all the logs cut from section six were piled at a certain point on the river front, that they were turned over to the plaintiffs, and that none of them were removed from that place by defendant or his agents, but that some of these logs were seen floating in the river after they had been delivered to the plaintiffs. The question as to whether any of these logs were removed by defendants was properly submitted to the jury, and they found for defendants. Plaintiff contends that the evidence shows that defendants admitted having taken from section six more logs than plaintiff received, but this is explained by the evidence that shows or tends to show that some of these logs floated down the river during the high water after they had been turned over to plaintiffs. This timber was cut and piled on the river bank before the 27th of May, 1904. Plaintiffs do not sue for any conversion prior to that time, but specifically alleged that the logs were...