Smith v. Ramsey

• Decision Date: 11 June 1914
• Citation: Smith v. Ramsey, 116 Va. 530, 82 S.E. 189, 15 A.L.R. 32 (1914)
• Parties: SMITH et al. v. RAMSEY.
• Court: Virginia Supreme Court

82 S.E. 189

(116 Va. 530)

SMITH et al.

v.RAMSEY.

Supreme Court of Appeals of Virginia.

June 11, 1914.

Error to Circuit Court, Caroline County.

Action by John N. Ramsey against D. C. Smith and others. There was a judgment for plaintiff, and defendants bring error. Reversed, and rendered for defendant.

The defendant in error brought this action of trover and conversion to recover the value of certain railroad ties, lumber, pulp wood, etc., which the defendants had, as averred, converted to their own use. There was a verdict and judgment in favor of the plaintiff. To that judgment this writ of error was awarded upon the petition of the defendants.

All questions of law and fact were submitted to the court for its decision, without a jury, upon an agreed statement of facts, which is as follows:

"It is agreed that the letter of date February 10, 1913, addressed to the plaintiff, John N. Ramsey, is the first notice sent or received forbidding the further removal of the ties, wood, lumber, etc., and that the said notice shall be taken to have been signed and is to be as binding upon the other defendants as though signed by the other defendants.

"It is further agreed that the timber which is the subject-matter of this action was cut and manufactured before the 9th day of February, 1913, and the only question at issue is over the right of the plaintiff to property in and to re-move the same after the expiration of his contract.

"It is further agreed that in August, 1912, at least six months before the expiration of said contract, said John N. Ramsey visited the defendant and in conversation with D. C. Smith offered to buy certain pine trees not included in the contract of February 9, 1911, and that the defendant signified his willingness to sell; that thereupon the plaintiff offered the defendant $50 for the pine trees, on condition, however, that the defendants would extend the time limited in the contract of February 9, 1911, for a period of eight months; that the defendant agreed tosell the pine trees at $50, but informed the plaintiff that the time of the February contract would not be extended a single day; that thereupon the plaintiff refused to buy the pine trees, and told the defendant D. C. Smith that he (plaintiff) intended to cut all of the trees included in his contract, and would remove the same when he got good and ready, in spite of the contract.

"It is further agreed that the following is a correct count and measurement of the ties, wood, lumber, etc., cut under the said contract and not removed from the premises prior to February 9, 1913, and that the total value set out is to be considered the correct value of the same, to wit:

--------------------------------------------
                |128   |finished oak railroad ties.        |
                |------|-----------------------------------|
                |34    |unfinished oak railroad ties,      |
                |------|-----------------------------------|
                |4, 659|feet of sawed lumber,              |
                |------|-----------------------------------|
                |558   |feet of sawed lumber,              |
                |------|-----------------------------------|
                |46 1/2|cords of pulp wood,                |
                |------|-----------------------------------|
                |16    |pieces of wagon poles,             |
                |------|-----------------------------------|
                |2, 500|feet oak and gum culls,            |
                |------|-----------------------------------|
                |      |valued in the aggregate at $550.00,|
                --------------------------------------------
                

"Subscribed and agreed to.

"G. B. Wallace,

"For the Plaintiff.

"Chandler & Beale,

"Attys. for Defendants.

"It is agreed that the defendants have taken possession under a claim of ownership of the ties, lumber, pulp wood, etc., set out above, and remaining on the premises February 10, 1913, and deny the right of the plaintiff to the same.

"G. B. Wallace,

"Attys. for the Plaintiff.

"Chandler & Beale,

"Attys. for Defendants.

"Contract of date February 9, 1911, referred to in agreement, which is in the following words and figures, to wit:

" 'This contract, made and entered into this 9th day of February, 1911, between M. D. Parr and Ada E. Smith and D. C. Smith, her husband, parties of the first part, and John N. Ramsey, party of the second part, witnesseth, that for and in consideration of the sum of five hundred dollars, one hundred dollars of which is paid in cash and the balance to be paid in thirty days from the date of this contract, the said parties of the first part have sold unto the said party of the second part all the growing timber (except the pine and cedar) on what is known as the river land of the North Point farm, and more particularly described as follows: Commencing at Hawes bridge over the Mattaponi river and running as the old main road used to run to the foot of the long hill at corner of fence, thence around the foot of the hill to the edge of the field, thence with the edge of the field to Mrs. Buchanan's line, thence with Mrs. Buchanan's line to the said Mattaponi river, and thence down said river to the point of beginning.

" The said parties of the first part agree to give the said party of the second part two years from the date of this contract in which to cut and remove said timber. And the said party of the second part is to have a right of way out to the main county road at the foot of the long hill first mentioned in this contract.

" 'Witness the following signatures and seals:

--------------------------------
                |" 'Mrs. M. D. Parr.   |[Seal.]|
                |----------------------|-------|
                |" 'Mrs. Ada E. Smith. |[Seal.]|
                |----------------------|-------|
                |" 'D. C. Smith.       |[Seal.]|
                |----------------------|-------|
                |" 'John N. Ramsey.    |[Seal.]|
                --------------------------------
                

"If fences are broken down by trees or pulled down in any way for outlets the fence must be repaired or put is good order at once.

"Letter referred to in agreed statement of facts, which ia in the following words and figures, to wit:

" 'Paige, Va., Feb. 10, 1913.

" 'Mr. John N. Ramsey, Fredericksburg, Va — Dear Sir:

" 'I write to notify you that the contract between us to cut and remove timber sold to you by me expired on the 9th day of February, 1913. 1 hereby forbid moving any more of the said timber.

" 'Respectfully, D. C. Smith.' "

Chandler & Beale, of Fredericksburg, and W. S. McNeill, of Richmond, for plaintiffs in error.

G. B. Wallace, of Fredericksburg, C. M. Chichester, of Richmond, and F. M. Chichester, of Fredericksburg, for defendant in error.

BUCHANAN,, T. (after stating the facts as above). [1] The controversy in this case grows out of the agreement attached to the agreed statement of facts. By that instrument the defendants sold to the plaintiff all the growing timber (except pine and cedar) on a designated parcel of land, and gave him two years from that date in which "to cut and remove said timber, " and a right of way, describing its course, from that land to a public highway. The controversy here depends upon the meaning of the words "to cut and remove" as used in the agreement.

There is scarcely any other subject upon which there is so great a diversity of judicial decision as in the construction of what are known as "timber contracts." Not only have the courts of different jurisdictions construed them differently, but the decisions of the same court have not always been uniform. Some courts hold that the rights of the vendee or grantee in such contracts are a license, others a lease, others an absolute sale, and others a conditional sale. In some cases it is held that the sale or conveyance is absolute, and the requirement to cut and remove the timber within a specified time a mere covenant, the breach of which does not affect the title, but only entitles the vendor to damages when broken, unless by the terms of the deed or contract, expressly or impliedly, the vendee's title is forfeited for failure to cut and remove the timber within the designated time. In other cases it...