Runyan v. Culver

• Decision Date: 21 January 1916
• Citation: 181 S.W. 640,168 Ky. 45
• Parties: RUNYAN ET AL. v. CULVER ET AL.
• Court: Kentucky Court of Appeals

181 S.W. 640

168 Ky. 45

RUNYAN ET AL. v. CULVER ET AL.

Court of Appeals of Kentucky.

January 21, 1916

Appeal from Circuit Court, Union County.

Action by T. E. Culver and T. E. Markham, composing the firm of Culver & Markham, against Nora D. Runyan and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

L. C Flournoy and Morton & Morton, all of Morganfield, for appellants.

Drury &amp Drury, of Morganfield, and P. B. Miller, of Louisville, for appellees.

SETTLE J.

The appellant I. V. Runyan, a resident of Union county, who had for several years been engaged in the manufacture of lumber and shingles, becoming financially embarrassed, on April 9 1910, made to W. T. Harris a deed of assignment, conveying all his property for the benefit of his creditors. Among the property conveyed by the deed was a sawmill, or mills, shingle mill, engines, and other machinery and appliances for the manufacture of lumber and shingles, located near the village of Island, in McLean county; also a lot of cypress logs near these mills, estimated to contain from 200,000 to 300,000 feet. January 21, 1911, the appellees, T. E. Culver and T. E. Markham, partners composing the firm of Culver & Markham, became the purchasers of the mills, machinery, and logs in question at the request of the appellant I. V. Runyan and his wife, Nora D. Runyan. Culver & Markham were to pay for the mills, machinery, and logs $1,500, for which they executed to W. T. Harris, assignee, their two promissory notes, of $750 each, payable, with interest, in 6 and 12 months, respectively. On the day of their purchase of the mills, machinery, and logs Culver & Markham and Mrs. Nora D. Runyan and her husband, I. V. Runyan, entered into the following written contract:

"This contract made and entered into on this the 21st day of January, 1911, by and between T. E. Culver and T. E. Markham parties of the first part, and Mrs. Nora D. Runyan, party of the second part, witnesseth: That, whereas the said Culver and Markham have this day purchased of W. T. Harris, assignee of I. V. Runyan, certain machinery near Island, Ky. consisting as follows: Between two and three hundred thousand feet of cypress logs on the logyard near Island, Ky. 1 24-horse power Heilman engine, 1 30-horse power Heilman Engine, 2 shingle mills, complete, 2 lathe mills complete, 1 circular saw at Henshaw, Ky. 1 pony sawmill, 1 line shaft, pulleys, belting and all other property belonging to the estate of I. V. Runyan, located near this point, excepting 1 Perkins shingle mill, which does not pass and is not sold. For the purchase price of $1,500.00, and whereas the said Mrs. Nora D. Runyan desires to become part owner of same, this agreement has been made between the parties aforesaid and is as follows: It is agreed that I. V. Runyan will devote his time to the manufacture of logs now on the log yard near Island, Kentucky, into shingles and such other lumber as the parties may deem best, and will give his time free of charge and see that all logs are properly manufactured into good merchantable shingles, lumber, etc., without expense of any kind to said Culver and Markham, except the cost of manufacturing same and of selling and delivering same to market, and so to do until sufficient lumber, shingles, etc., at a fair market price shall have been manufactured to pay for the cost of the mills, logs, etc., purchased this day of W. T. Harris, assignee of I. V. Runyan as above mentioned, which will be $1,500.00 and the accrued interest. Then and in that event Mrs. Nora D. Runyan is to have and to own one-half of all the machinery above mentioned and one-half of whatever shingles, lumber, logs, timber, etc., that may remain after the payment of the notes and interest as above mentioned.

It is understood and agreed that Culver and Markham are not to be bound in any way other than for the purchase price of the said notes and not to put up any other money at any time, during the life of this contract for the purchase of timber or for operating expense or any other expense of any kind. It being agreed that the said Mrs. Nora D. Runyan shall put up the money for all this and to be alone bound therefor and in consideration of her so doing, she is to have one-half of all the machinery, etc., above mentioned after the notes shall have been paid. In case there shall not be sufficient logs on the yard now to pay for the said notes above mentioned then the said Mrs. Nora D. Runyan is to purchase sufficient timber to carry out this contract, and to pay off the amount of the notes aforesaid, said timber to be manufactured as herein before mentioned.

Settlements are to be made under this contract at the end of each 30 days and the amounts realized from the sale of shingles, lumber, etc., shall be accounted for and shall be applied on the notes executed to W. T. Harris, assignee of I. V. Runyan, for the purchase price of the machinery aforesaid.

It is understood that on any shingles, lumber, etc., sold on the yard, no commission or other selling expense shall be charged or paid, but on all other sales made the parties making the sale shall be allowed ten cents per 100 on the lumber and ten cents per 1,000 on all shingles and lathes sold. This shall be all the selling expense, and no additional railroad, hotel, telephone or other selling expense shall be charged by the party so selling.

Said I. V. Runyan joins in this contract, agreeing to the terms thereof and in order to assist the said Mrs. Nora D. Runyan in carrying out the contract aforesaid, agrees to the terms requiring his time and attention in the fulfilling of this contract, and agrees to be fully bound therefor in any other way.

Witness the hands of the parties on this the day and date first mentioned above.

T. E. Culver.

T. E. Markham.

Mrs. Nora D. Runyan.

I. V. Runyan.

It is understood and agreed under this contract that said I. V. Runyan and Mrs. Nora D. Runyan are to begin work as per the terms of this contract not later than March 1st, 1911, and to continue this work with all due diligence and dispatch and make due efforts to get out enough shingles and etc. to meet each of these notes when it becomes due.

Nora D. Runyan.

I. V. Runyan."

This action was instituted in the Union circuit court by the appellees, Culver & Markham, February 14, 1913, against the appellants, Nora D. Runyan and I. V. Runyan, seeking to recover $5,000 damages for a breach by the latter of the above contract, it being alleged in the petition that they had wholly failed to perform the same, or any part thereof. The answer of appellants admitted the nonperformance, but resisted the recovery of damages sought upon the grounds: First, that the performance of the contract was prevented by the act of God, that is, that the incessant and constant rains prevailing in 1911 flooded the ground upon which the logs were lying to such an extent as to create a lake, the waters of which covered them and prevented their removal during that year to the mills at Island, where they were to be sawed into lumber and shingles; second, that the contract was further rendered impossible of performance because when and after the waters subsided and the logs could be and were hauled to the mills, they were so sap-rotten and worm-eaten as to render them wholly unfit for manufacturing into lumber or shingles, and that other logs, suitable for manufacture into lumber and shingles, had reached such a market price, and the finished product fallen to such a low market price, as to render it impossible for appellants, by operating the mills, to pay the two notes executed by appellees to W. T. Harris, assignee.

In view of the absence from the contract of a provision excusing its nonperformance by appellants on account of the existence of such weather conditions as are alleged to have prevailed in 1911, they cannot rely upon the defense first interposed by the answer. In Helburn & Co. v. Mofford, etc., 7 Bush, 169, the recovery of rent claimed by a landlord upon a storeroom was resisted by the tenants upon the ground that they were not bound therefor because of the destruction of the building by fire. In holding this defense untenable the court said:

"As early as 1809 this court, after full consideration, and a review of the authorities both English and American, in the case of Redding v. Hall, 1 Bibb, 536, announced the rule, both at law and in equity, to be established by the weight of authorities that the tenant is bound to pay the rent, though the premises demised should be destroyed by inevitable casualty. The learned judge delivering the opinion in that case remarked: 'This rule, though at first view appears harsh and rigorous, upon a closer examination will be found to be reasonable, and to comport with principles to which we submit in analogous cases without questioning their propriety. The reason for the rule seems to be that, as the tenant has expressly covenanted to pay the rent, and has not by his contract provided against his liability, notwithstanding any accident by inevitable necessity, the law cannot interpose.' It is true that the law on the subject has been ruled differently in New York, Massachusetts, and some other states. But in this state the rule has been settled for over 60 years, and not only acquiesced in, but repeated in numerous decisions by this court since the case of Redding v. Hall, supra; and he would be a bold judge who would now undertake to change the rule adhered to for so many years. It is so easy in making contracts of this character for parties to provide for inevitable casualty and unavoidable accidents that in those in which no provision is made against such casualties and misfortunes it would almost seem that the parties intended to take

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