Robinson v. J. Bice & Sons

• Decision Date: 27 October 1921
• Docket Number: 5 Div. 597
• Citation: 206 Ala. 546,90 So. 307
• Parties: ROBINSON v. J. BICE & SONS.
• Court: Alabama Supreme Court

90 So. 307

206 Ala. 546

ROBINSON v. J. BICE & SONS.

5 Div. 597

Supreme Court of Alabama

Oct. 27, 1921

Appeal from Circuit Court, Chilton County; B.K. McMorris, Judge.

Bill by J. Bice & Son against W.C. Robinson, for the specific performance of a contract to convey lands, and for an accounting, wherein defendant filed an answer and cross-bill. From a decree overruling demurrers to the original bill as amended, and sustaining demurrers to the cross-bill defendant appeals. Affirmed.

From the bill it appears:

That certain lands were sold for division, and that the sale was set aside at the instance of Bice and Robinson for inadequacy of price, Bice procuring from Robinson the loan of $500 which was deposited as a guaranty that a better bid would be made, and Bice arranged with Robinson for a loan of a larger sum of money to make the purchase of the land, with the averment that Robinson purchased the land with this money while acting as the agent of Bice, and had the title made to him (Robinson). That thereafter Bice tendered to Robinson a deed to be executed by Robinson to Bice, conveying this land and also tendered to Robinson a mortgage and notes properly executed from the firm to Robinson to secure the purchase money, all of which Robinson refused. Later, Bice and Robinson entered into a contract whereby it was agreed between Robinson and Bice that Bice should move his sawmill upon the land immediately, and begin to cut the timber, and begin to manufacture the same into lumber, and was to manufacture for Robinson 150,000 feet of certain dimensions at $50 per 1,000, f.o.b. cars, and to have all the lumber at the price agreed, and, where there was no agreement as to price, Robinson was to have 10 per cent. less 2 per cent. of the amount received for the lumber, and when the full is made the contract is to specify the terms of conveying the land to Bice. After many efforts this contract was entered into, and is as follows:

This contract or agreement made and entered into this, the 15th day of July, 1920, between J. Bice & Sons, a partnership composed of J. Bice, C.E. Bice and G.A. Bice, as party of the first part, witnesseth that, whereas W.C. Robinson owns the following described lands in Chilton county, Alabama, to wit S.E. 1/4 and S. 1/2 of N.E. 1/4, Sec. 3, Tp. 23, R. 12, and the S. 1/2 of the N.W. 1/4 of Sec. 2, and the N.E. 1/4 of the S.W. 1/4 of Sec. 3, all in Tp. 23, R. 12; and, whereas said Bice & Sons, desire to cut the timber on said lands for said W.C. Robinson: Now, therefore, the said Bice & Sons agree to cut all timber on said lands into lumber for said Robinson, and to cut, manufacture, load and ship same according to the orders furnished the said Bice & Sons by the said Robinson, and at prices agreed on by the said Bice & Sons and the said Robinson, and where no price is agreed on between the said Bice & Sons and the said Robinson the said lumber shall be delivered to the said Robinson, and he shall be allowed 10 per cent. commission on the amount he receives for said lumber for selling same--2 per cent. is to be deducted from all prices if paid in 10 days from receipt of invoice and bill of lading, but if not paid in 60 days from receipt of invoice and bill of lading of shipment, the net amount of price stated on the order shall be paid.

Said Bice & Sons agreed to cut, load and ship said lumber according to orders furnished by the said Robinson, the amount of 80,000 feet per month board measure each month, beginning July 1, 1920, and continuing successively each month until all timber on said lands has been cut and shipped.

Said Bice & Sons also agree that said Robinson may deduct $10 per 1,000 feet for all lumber shipped or disposed of otherwise as a stumpage price until the said Robinson shall have received the sum of $4,735 and all taxes paid or assessed against said lands, and all other expenses paid or pledged on account of said lands, together with the interest on said amounts from the date of the purchase of said lands by the said Robinson.

This contract shall not be so construed as to permit said Bice & Sons to cut, sell or otherwise dispose of any of the timber on said lands except to the said Robinson, as hereinbefore stated.

It is further understood and agreed that all of the timber on the above-described lands shall be cut and shipped on or before October 1, 1921.

If the said Bice & Sons shall cut and ship all of the timber on the above-described lands for the said Robinson according to

...