Pope v. Barnett

• Decision Date: 23 February 1932
• Docket Number: No. 21656.,21656.
• Citation: 45 Ga.App. 59,163 S.E. 517
• Parties: POPE. v. BARNETT.
• Court: Georgia Court of Appeals

45 Ga.App. 59

163 S.E. 517

POPE.

v.BARNETT.

No. 21656.

Court of Appeals of Georgia,

Division No. 2.

Feb. 23, 1932.

Rehearing Denied March 5, 1932.

Syllabus by Editorial Staff.

Error from Superior Court, Wilkes County; C. J. Perryman, Judge.

Suit by Mrs. F. W. Barnett against M. P. Pope. Judgment for plaintiff, and defendant brings error.

Reversed.

W. A. Slaton, of Washington, Ga., for plaintiff in error.

Clement E. Sutton, of Washington, Ga., for defendant in error.

BELL, J.

[1,?] 1. "The sale of standing timber, where the contract contemplates that the growing trees are to remain in the soil for a fixed time or indefinitely, at the pleasure of the vendee, concerns an interest in the land. Moore v. Vickers, 126 Ga. 42, 54 S. E. 814. On the other hand, the prevailing rule seems to be that if the trees sold are to be immediately severed from the soil and carried away, and are not to be left to grow and attain additional strength from the soil, the sale is that of personal property, and not of an interest in land." Graham v. West, 126 Ga. 624, 55 S. E. 931.

2. "A contract of sale in regard to timber which is attached to the soil, but which is presently to be severed therefrom and converted into personalty before the title is to pass to the purchaser, is an executory sale of personalty, and not of an interest in land." Clarke Bros. v. McNatt, 132 Ga. 610 (3), 64 S. E. 795, 26 L. R. A. (N. S.) 585.

3. An oral agreement whereby an owner "contracted and agreed to sell" to another "all of the pine, oak, poplar and sweetgum timber located" on a described tract of land "at and for a price of Six Dollars ($6.00) per thousand feet on the stump, payment to be made for said timber as the same is sawed and stacked, " and whereby the purchaser agreed "to commence cutting of said timber" within a few months and "to continue regu-larly such cutting and sawing operations until all the timber suitable for sawmill purposes is cut and removed, " under which agreement the purchaser paid the sum of $500 "as an advance on the price, " the remainder to be paid as above indicated, was an executory contract for the sale of personalty whereby the seller agreed to surrender to the purchaser the possession and title of the timber upon its being converted into lumber and paid for at the agreed price per thousand feet. Lovelace-Eubanks Lumber Co. v. Brown, 38 Ga. App. 223 (1), 143 S. E. 434. See, also, in this connection, Harrell v. Williams, 159 Ga. 230 (1), 125 S. E. 452.

4. Where the purchaser, after taking and removing the better grades of the timber, refused to cut the poorer grades, notwithstanding all the timber was sold at an average price, the seller could not sue the purchaser for the entire contract price of the timber which the purchaser failed and refused to cut. The seller still owned and possessed the remaining timber, and the remedy would be an action for damages for the breach of the contract; and the measure of the damage would be the difference between the contract price and the market value of such remaining timber. Oklahoma Vinegar Co. v. Carter, 116 Ga. 140 (2), 42 S. E. 378, 59 L. R, A. 122, 94 Am. St. Rep. 112; Irwin v. Askew, 74 Ga. 581 (3); Rounasville v. Leonard Mfg. Co., 127 Ga. 735 (4), 56 S. E. 1030; Reed v. Dougherty, 94 Ga. 661, 20 S. E. 965; Dilman Bros. v. Patterson Produce Co., 2 Ga. App. 213 (1), 5S S. E. 365; Mack v. Pardee, 39 Ga. App. 310 (1), 315, 147 S. E. 147; Clark v. Wood, 39 Ga. App. 340, 147 S. E. 173.

5. Since the plaintiff was not entitled to recover the purchase price, and alleged nothing as to the market value of the timber which the defendant failed and refused to cut, so as to show damage by the defendant's abandonment of the contract, no cause of action was stated, and the court erred in not sustaining the general demurrer and dismissing the petition. Hadden v. Southern Messenger Service, 135 Ga. 372 (3), 69 S. E. 480; Sparks Mill. Co. v. Western Union Tel. Co., 9 Ga. App. 728, 72 S. E. 179.

6. Since the contract did not show a sale of an interest in realty, the statute of frauds as to a sale of realty was inapplicable, and, seemingly, there was such part performance as would authorize a finding that the contract was removed from the operation of the statute so far as it might apply to a sale of personalty. Nellis v. Houser, 33 Ga. App. 266 (3), 125 S. E. 790.

Judgment reversed.

On Motion for Rehearing.

In the third division of the original syllabus we referred to a payment of $500 as an advance on the purchase price, whereas the petition was amended so as to allege a payment of $1,000 instead of $500. The decision is hereby amended so as to correct this error and to state the proper amount.

We did not overlook the plaintiff's amendment with reference to the terms and conditions of the contract, but concluded that the true character of the agreement was disclosed by the facts alleged in the original petition, and that the allegations of the amendment did not require a different construction.

The petition alleged that the agreement was made on December 15, 1928, and that "the defendant agreed to commence cutting of said timber not later than the spring of 1929, and to continue regularly such cutting and sawing operations until all of the timber suitable for saw mill purposes was cut and removed, " and that "if the defendant had carried out his contract, the cutting and sawing of such timber could have been completed by June 1st, 1929." It appears both from the petition and the amendment that the defendant entered upon the lands and cut and removed a large portion of the timber and paid therefor at the agreed price of $6 per thousand, but that he refused to continue operations and abandoned the contract after he had removed the better grades of the timber, and the plaintiff is seeking to recover the purchase price of the remaining timber which it is claimed was included and sold by the agreement. The amendment to the petition contained the following allegations:

"Plaintiff shows that the timber of the kinds named on the tract of land described was not of uniform growth on the lands or of uniform quality, but that parts of the timber was of fine quality and heavy growth on the lands, whereas other parts were poor quality of scattering growth and located in places' on said tract not easily accessible, whereas the heavy growth timber and that of good quality was within a mile of two planing mills and near the city limits of Washington, Georgia, and, being so located, was worth more than six dollars per thousand B. M.

"That plaintiff had refused to sell the good timber on said tract unless a contract was made to purchase all the timber suitable for sawmill purposes located on the lands, because she recognized the fact that unless the timber was sold as a whole, that there would be no sale for the scattered timber after the heavy growth and good quality timber was cut from the lands, and she would...