Prescott v. J.S. Beets Co.

• Decision Date: 15 April 1921
• Citation: 88 So. 385,81 Fla. 538
• Parties: PRESCOTT v. J. S. BETTS CO.
• Court: Florida Supreme Court

88 So. 385

81 Fla. 538

PRESCOTT v. J. S. BETTS CO.

Florida Supreme Court

April 15, 1921

Error to Circuit Court, Madison County; R. H. Rowe, Referee.

Action by the J. S. Betts Company against W. M. Prescott and another. Judgment for plaintiff, and defendant named brings error.

Affirmed.

(Syllabus by the Court.)

COUNSEL

Chas. E. Davis, of Madison, for plaintiff in error.

Wm. T Hendry, of Perry, for defendant in error.

OPINION

ELLIS J.

This was an action of replevin brought by J. S. Betts Company, a corporation, in the circuit court for Madison county against A. A. Cady and W. M. Prescott to recover damages for withholding from it the possession of 2,500 cross-ties piled at the railroad station at Sirmons, Fla., and alleged to have been cut from certain described lands in Madison county. The defendants pleaded not guilty, and the issue was tried by a referee chosen by consent. The facts were agreed to by stipulation between counsel, and the referee found for the plaintiff that it was entitled to the possession of 363 of the crossties, which were of the value of $217.80, and entered judgment against the defendant and the sureties on his bond for that amount and costs. From that judgment the defendant took a writ of error.

The stipulation entered into between counsel eliminated all questions as to the number of cross-ties and their value for which the plaintiff could revover if at all. It was agreed that A. A. Cady was not liable in the action; that Prescott cut 600 ties from the land described under a license from Cady; that he had shipped 237 of that 600, leaving 363 the subject of the litigation; the remainder it was agreed were cut from other lands.

That Cady claimed under a deed from the plaintiff to certain timber on the lands; that he had made the initial payment of $1,000, but had made no other payment under the contract, and that the timber was cut promiscuously over the entire tract but the plaintiff had no actual knowledge of such fact. No protest was ever made by the plaintiff or its agents to either Prescott or Cady about the cutting of the ties, nor were they notified to cease cutting, nor to quit the premises; nor did the plaintiff re-enter upon the lands before instituting the action.

The deed under which Cady claimed was dated February, 1919. It was executed by the plaintiff to Cady and 'granted bargained, leased and conveyed' unto Cady, his heirs and assigns, 'all the timber of all sizes for sawmill purposes, standing and being' upon the lands described for a period of one year. This license or conveyance was made 'under the conditions and limiations' set forth in the instrument.

The consideration was the payment of $2.268 by Cady to the plaintiff, $1,000 of which were had paid upon the execution of the instrument. It was covenanted and agreed that Cady and his assigns should have the right to enter upon the lands with teams, tramroads, railroads, and skidders for the purpose of cutting and removing the timber 'during the continuance of this lease.' That covenant was followed by an agreement that Cady should have the right to erect a sawmill on the lands during the term of the 'lease.' Paragraph 2 of such agreement was as follows:

'2. The party of the second part shall not have the right to cut the timber on said land until the further payment for said timber shall have been made in the amounts following, until the full amount of the balance $1,268.00 and interest thereon shall have been paid, to wit: Before cutting N.W. 1/4 of S.E. 1/4 section 33, pay $405; before cutting N.E. 1/4 of S.E. 1/4 section 33, pay $444; before cutting N.W. 1/4 of S.W. 1/4 section 34, pay $408; before cutting N.E. 1/4 of S.W. 1/4 section 34, pay $333; before cutting S.W. 1/4 of S.W. 1/4 section 34, pay $438; before cutting S.E. 1/4 of N.W. 1/4 section 34, pay $240--and interest on the said six sums last above named at the rate of eight per cent. per annum.

'Provided, however, that the party of the second part may cut only one of said 'forties' without first paying said amount, but no other of said 'forties' shall be cut except as paid for as aforesaid, until the amount of said balance of $1,268.00, with interest thereon has been paid.

'That if the party of the second part, his heirs or assigns, shall enter and begin cutting the timber upon any one 'forty' of said land before payment in full of the said respective sum and interest as aforesaid for each 'forty' so entered upon, prior to the payment in full of the said balance of...