Queen City Hoop Co. v. Barnett

• Decision Date: 21 November 1921
• Docket Number: 22027
• Citation: 127 Miss. 66,89 So. 819
• Court: Mississippi Supreme Court
• Parties: QUEEN CITY HOOP CO. v. BARNETT et al

89 So. 819

127 Miss. 66

QUEEN CITY HOOP CO. v. BARNETT et al

No. 22027

Supreme Court of Mississippi

November 21, 1921

APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS Judge.

Action by the Queen City Hoop Company against Milton Barnett and others. Judgment of dismissal on demurrer, and plaintiff appeals. Affirmed.

This is a suit by the appellant, Queen City Hoop Company, against the appellees, Cohn Bros. & Barnett, a partnership, for damages for the breach of an alleged contract of purchase by the appellant from the appellees of stumpage or standing timber. Appellees interposed a demurrer to the declaration, which was sustained by the court below on the ground that the alleged contract for the purchase of the timber in question was insufficient and void under the statute of frauds. The appellant having declined leave granted to amend its declaration, final judgment was entered dismissing the suit from which appellant prosecutes this appeal.

The averments of the declaration setting out the contract, which is the basis of the suit, and the breach thereof, are contained in the second paragraph of the declaration, which is in this language:

"For that heretofore, to wit, on March 31, 1920, said defendants by and through Milton Barnett, one of the partners of said firm, agreed and contracted to sell to plaintiff all of the elm and hackberry timber then on the land of defendants at or near Lorenzen, Miss., at and for the sum of three thousand dollars which said timber had been agreed upon by all parties and was known to them; said agreement being made in writing in a letter from the defendants to the plaintiff sent in the usual course of mail, a copy of said letter being hereto attached, marked Exhibit 1. Said letter was an acceptance of an offer made by the plaintiff through P. W. Hick, the president and manager of said company following verbal conversations looking to the purchase of said timber, the said offer being made on March 16, 1920 copy being hereto attached and marked Exhibit 2, and prayed to be considered a part hereof. Thereafter, on April 3, 1920, by letter from the plaintiff, a copy being filed herewith marked Exhibit 3, the contract was finally closed and demand made for description of the property in order to prepare instruments covering the same, which demand was repeated on May 17, in a letter from plaintiff, copy thereof being marked Exhibit 4 and filed herewith as a part hereof. This request being repeated on May 19, 1920, in a latter from the plaintiff, copy of which is marked Exhibit 5, and filed herewith. The final refusal of the defendants to comply with that contract being in a letter from them to Milton Barnett dated May 20th, a copy whereof is hereto attached, marked Exhibit 6, and prayed to be considered a part hereof."

It will be seen from the declaration that appellant claims to have purchased from the appellees "all of the elm and hackberry timber then on the land of defendants (appellees) at or near Lorenzen, Miss." The alleged contract is embodied alone in the correspondence between the appellant and appellees consisting of six letters, two of which were written by the appellees and four by the appellant: These letters were made exhibits to the declaration, and are in the following language:

"Lorenzen, Miss., March 31, 1920.

"Queen City Hoop Co., Greenville, Miss.--Gents: Sorry did not get to see you yesterday, in regard to our elm and hackberry timber. We agree to let you have some for three thousand dollars give you to Jan. 1, 1921, also a road agreeable and reasonable camping ground, to us, you to pay three thousand dollars as soon as contract signed. You can have contract fixed up, mail same to us at Indianola.

"Yours truly, Cohn Bros. & Barnett,

"[Signed]

M. BARNETT."

"March 16, 1920.

"Mr. Milton Barnett, Indianola, Miss.--Dear Sir: Our Mr. Shepherd and the writer were at Lorenzen yesterday, March 15th, and tried to go over this timber tract of yours, but same was practically impossible, although your Mr. McMahon was very kind and furnished us with two saddle horses and a darkey.

At the present time, the larger part of this tract is under from one to two feet of water, and it will be impossible to log same for at least sixty to ninety days. Therefore, we are pleased to make the following offer for this timber:

"We will pay you your price three thousand dollars for all the merchantable timber in this tract. We to have until January 1, 1921, in which time to remove same, you to furnish us free ingress and egress to and from this timber and allow us to make our camp on your land close to timber.

"The writer will be away until Friday, March 19th, and will be pleased to see you at any time after that date.

"Yours very truly, Queen City Hoop Co., Inc.,

"Hick.jeh

Pres. & Mgr."

"April 30, 1920.

"Cohn Bros. & Barnett, Indianola, Miss.--Gentlemen: Your letter of March 31st. Before we can write up a contract and deed to the timber you own at Lorenzen, you will have to furnish us with section numbers, range, township, in fact, give definite location of this timber. Upon receipt of which we will mail you contract for your signatures.

"Yours truly, Queen City Hoop Co., Inc.,

"Hick.jeh

Pres. & Mgr."

"May 17, 1920.

"Mr. Milton Barnett, Indianola, Miss.--Dear Sir: Some time ago we wrote you asking you to send us descriptions and location of the elm stumpage we made arrangements to purchase from you, located at Lorenzen, Mississippi, all we require is section No., range, township and county, upon receipt of which we make out the papers, sending on to you for your signatures. Upon receipt of the above papers properly signed, we will send you check for three thousand dollars as per our agreement.

"Thanking you for prompt reply,

"Yours truly, Queen City Hoop Co., Inc.,

"Hick.jeh

Pres. & Mgr."

May 19, 1920.

"Mr. Milton Barnett, Indianola, Miss.--Dear Sir: We expect to be through logging at Wayside some time next week and expect to commence cutting the timber we bought of you at Lorenzen not later than June 1st, therefore wish you would either call at our office or mail us description of this property so we can send you check for same.

"Awaiting your immediate reply.

"Yours truly, Queen City Hoop Co., Inc.,

"Hick.jeh

Pres. & Mgr."

"Queen City Hoop Co., Greenville, Miss.--Gentlemen: In regard to the elm proposition we were figuring on at Lorenzen, Miss. We managed to dispose of our whole tract, shrubs including all elm and other timber. Regret, therefore that we will be unable to close this deal with you. However, in the near future we may have another tract that will interest you.

Yours truly,

"[Signed]

COHN BROS. & BARNETT, M. BARNETT."

Affirmed.

Percy Bell, for appellant.

Is the description insufficient under the statute of frauds? In some states a sale of timber to be cut is regarded as a sale of personal property and a contract therefor does not fall under the statute of frauds. This is not the case in Mississippi where growing timber is held to be a part of the realty and a contract therefor, is well within the statute.

We can find cases in Mississippi in which land described purely as to ownership has been held to be insufficiently described. We also find authorities that land described by location alone is insufficiently described and we suppose the learned court below was led astray by these cases. It will be noted, however, that neither of them applies to the case at bar in which the land is described not only by location but by ownership. We find no case of this kind in the Mississippi authorities, but do find it in other authorities and wish to cite them for the benefit of the court.

In 25 R. C. L., page 653, paragraph 285, we find the following: "The rule upholding the sufficiency of the description where it may be fitted by extrinsic evidence to a particular lot or tract of land has been applied where the land was described as all of or a certain interest in all of the land owned by the vendor."

In Moayon v. Moayon, 102 A. S. R. 303, the court holds that a contract by a person to convey one-third of his estate acquired under a will or otherwise acquired or owned by him is good under the statute, the idea being that the property is easily identified. There was this sustention of a description merely by words of ownership. In the same authority, we find that the description has been upheld as to a tract of land located at a certain place.

In the case of Hodges v. Kowing, 71 L. R. A. 87, cited in the note, the land was described in terms of ownership as well as locality which is the case here.

In the next case cited in the notes Colerick v. Hooper, 56 Am. Dec. 505, the land was described by location and possession as in the case at bar.

In the next case Bates v. Harris, 36 L. R. A. (N. S.) page 154, the land is described by possession and acreage, the court holding, we think properly, that parol testimony could be introduced to show that the vendor owned but one tract in the place mentioned containing the acreage specified. We refer the court to the opinion in this case and the note as being thorough and illuminative. Wood, Stat. Fr. sec. 353; Mead v. Parker, 115 Mass. 413, 15 Am. Rep. 110; Hyden v. Perkins, 119 Ky. 188, 83 S.W. 128.

In the next case cited, Bogard v. Barhan, 132 A. S. R. 676, the farm conveyed is described as possession, as "my fifteen acre farm located one mile north of Woodburn, in Marion County, Oregon."

In the case at bar, in letter one, defendants refer to "our timber." In the letter number two, plaintiffs state that they were at Lorenzen and refer to "your timber tract." In letter number three, plaintiffs referred to the timber you own at Lorenzen, and in letters...