Simmons v. Groom
| Decision Date | 18 November 1914 |
| Docket Number | 275. |
| Citation | 83 S.E. 471,167 N.C. 271 |
| Parties | SIMMONS v. GROOM. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; Allen, Judge.
Action by W. B. Simmons against W. L. Groom. From a judgment confirming a report of the referee in favor of plaintiff defendant appeals. Affirmed.
A contract assigning timber deeds to defendant in consideration of cutting timber at so much per thousand construed, and held that defendant's obligation to pay had become absolute by reason of his delay in carrying out the contract.
The plaintiff complained and offered evidence tending to show That in 1908, plaintiff was the owner of certain lands timber contracts, sawmill, dry kiln, planing mill and other property, and defendant offered to buy the same at the price of $19,500, which offer plaintiff accepted. Defendant having paid off as part of the contract prices, to wit, the sum of $8,714.65, the same being certain charges existent on the property and debts due from plaintiff, the parties subsequently met together at Rocky Mount, on the 17th of December, 1908, and entered into a written contract, as embodying the executed and executory features of the agreement, in terms as follows:
"North Carolina--Nash County. Know all men by these presents, that I, W. L. Groom, for and in consideration of certain timber and land deeds and two bills of sale, does agree to pay W. B. Simmons, his heirs or assigns, ten thousand, seven hundred and eighty-five dollars and thirty-five cents ($10,785.35), same to be paid as follows: It being understood that what I have paid heretofore is payment in full for mills, land, etc., and four million, five hundred thousand feet of timber, by scale Doyle's rule, and for all logs cut after said amount above is cut I am to pay at the rate of three dollars ($3.00) per thousand feet for from the first to the tenth day of each month for such Doyle's log scale is cut during the preceding month, until the above amount is settled for, or in other words, until I have cut enough logs after having cut the four million, five hundred thousand (4,500,000) feet, to amount to ten thousand, seven hundred and eighty-five dollars and thirty-five cents ($10,785.35), at a rate of three dollars ($3.00) per thousand feet, it being understood that I am to cut said timber as a whole within the time mentioned in said timber deeds as much sooner as I reasonably can, it being further understood that all logs are to be scaled by the mill operator or such a man as he may designate, and the amount of same rendered to W. B. Simmons. Now, in the event said W. B. Simmons is not satisfied with scale, another scaler can be secured by mill operator and said W. B. Simmons, jointly, each paying one-half of cost of said scaler and said scaler is to certify to his account once each month. It is further understood and agreed that all timber is to be cut reasonably saving. This agreement is to bind my heirs and assigns.
In witness whereof I do this 17th day of December, 1908, fix my hand and seal.
W. L. Groom. [ Seal.]"
That the timber interest disposed of in this agreement consisted of contract rights to cut timber on specified tracts of land held at that time by the vendor and expiring at different times, to wit, in 1912, 1913, 1916, 1918. That in reference to performance or failure to perform the stipulations of the contract, the referee, Mr. E. S. Martin, finds, and there is testimony in the record to support the finding:
"Fifth. That the defendant promised plaintiff that he would enter upon the cutting of the timber at once, and he did so for some time and sent his men for that purpose a little before Christmas, 1908, or first of year 1909.
Sixth. That the defendant ran the mill for four or five months, and shut down in May, 1909, and stopped cutting timber, and the mill remained idle for about six months and no timber cut, when plaintiff wrote him to continue cutting, to which defendant made no reply. Defendant started up again in January, 1910, ran about six months, stopped again, and shut down the mill and stopped cutting timber for some 12 months; started up in March, 1911, and ran until the mill was burnt in May, 1911, and defendant from that time ceased operating and cutting timber, and the mill has never been rebuilt, but he has operated other mills at other places which he owned. That the frequent stops were occasioned by lack of funds, labor troubles, and attachments for debts.
Seventh. That at the time said timber contracts and property were sold and said contract was made, to wit, December 17, 1908, there were at least 10,000,000 feet of standing timber upon said land conveyed by the plaintiff to the defendant.
Eighth. That no guaranty or representation was made by the plaintiff as to the quantity of timber standing upon said tracts of land sold by him to defendant, but defendant relied entirely upon his own examination and judgment as an expert, and I so find him to be, as to the quantity of timber thereon. That the contract made by the defendant to the plaintiff hereinbefore set forth was not based upon any condition as to the quantity of timber on said land bought as aforesaid.
Ninth. That on or about November 15, 1909, the defendant sold and conveyed all of the lands, timber contracts, mill, and other property conveyed to him by the plaintiff to the Duck Lumber Company, a corporation which he had formed and incorporated about that time, and in which he held considerably a majority of the stock; that he became the president of said company and managed and controlled the same.
Tenth. That the capacity of the mill sold to defendant was about 3,500,000 feet per year, and the mill could easily cut that amount per year, and between the date of the contract and March 17, 1912, the mill, if run with reasonable regularity, could easily have manufactured all the timber standing on said lands, 10 million or more, into lumber and, in fact, it was calculated by defendant that it could be done in three years from the date of the contract, whereas, during...
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