South Arkansas Lumber Co. v. Tremont Lumber Co

• Citation: 83 So. 378,146 La. 61
• Decision Date: 03 November 1919
• Docket Number: 22032
• Court: Louisiana Supreme Court
• Parties: SOUTH ARKANSAS LUMBER CO. v. TREMONT LUMBER CO

83 So. 378

146 La. 61

SOUTH ARKANSAS LUMBER CO. v. TREMONT LUMBER CO

No. 22032

Supreme Court of Louisiana

November 3, 1919

Rehearing Denied December 1, 1919

Appeal from Fourth Judicial District Court, Parish of Lincoln; S.D Pearce, Special Judge.

Suit by the South Arkansas Lumber Company against the Tremont Lumber Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Stubbs Theus, Grisham & Thompson, of Monroe, for appellant.

George Gunby, of Monroe, for appellee.

PROVOSTY J. MONROE C. J., dissents.

OPINION

PROVOSTY, J.

In the year 1904, the plaintiff, the South Arkansas Lumber Company, a sawmill corporation holding some 40,000 acres of timber lands, sold to the Louisiana Stave Company 2,000,000 feet of hardwood timber standing on certain of these lands, fully described in the deed, and therein stated to be situated in the parishes of Jackson and Winn. This deed was duly recorded in the parish of Jackson, but by in advertence was not recorded in the parish of Winn.

Two years later, on March 12, 1916, the said lumber company agreed to sell all its holdings (sawmill plant, timber lands, and all) to the defendant company, the Tremont Lumber Company. The agreement was reduced to writing, and contains, among other clauses, the following:

"It is understood that on certain 40's which have been estimated by J. D. Lacey & Co. that there are about 2,000,000 feet of hardwood timber which does not belong to the first party and is not embraced in this contract.

"It is also understood that the first party has not paid for some 2,145,000 feet of timber which is in the estimates of J. D. Lacey & Co., and it is further understood that the second party, in lieu of said hardwood and said timber, which has not been paid for, shall receive and accept certain nineteen 40's carrying about 5,560,000, according to the representations of the first party, and which have not been estimated by J. D. Lacey & Co."

Less than a month later, on April 3, 1906, this agreement was carried out by the execution of a deed of sale. This deed, which is very lengthy, makes no express reservation of the hardwood timber theretofore sold the Louisiana Stave Company, but contains the following clause:

"And the vendor further declared that it is its purpose and intention to sell, etc., , unto the vendee, all the property, real, personal, and mixed, of any and all character and description whatsoever, situated in the state of Louisiana, now owned by it, whether the same be particularly described herein or not."

And again the following:

"It being also specifically stipulated and agreed that, while the vendor herein conveys all the merchantable timber on certain lands hereinabove described, it conveys only such timber as it, said vendor, has heretofore acquired in any manner whatsoever and now owns."

By these clauses it is very evident that the idea of the parties was that the purchasing company was simply succeeding to the holdings of the selling company -- stepping into its shoes.

After this deed had been duly recorded in the parishes of Jackson and Winn, the purchasing company proceeded to cut and remove the timber, including that part of the hardwood timber sold to the Louisiana Stave Company, situated in the parish of Winn.

The Louisiana Stave Company, acting on the assumption that the South Arkansas Lumber Company had sold this timber to the Tremont Lumber Company, and that this second sale prevailed over the first, because recorded first in Winn parish, sued the South Arkansas Lumber Company for the value of the timber, and obtained judgment.

The South Arkansas Lumber Company paid this judgment, and now brings the present suit to recover of the Tremont Lumber Company the amount so paid. The theory of the suit is that this hardwood timber was not included in the sale to the Tremont Lumber Company, and that by taking it the latter company committed a tort which damaged the South Arkansas Lumber Company to the amount which, as a consequence of the tort, the latter company was condemned to pay to the Louisiana Stave Company.

In defending the suit in which it was thus condemned, the South Arkansas Lumber Company denied that the said hardwood timber had been included in the sale to the Tremont Lumber Company; it averred that all of the timber sold to the Louisiana Stave Company had been removed by that company, and none of it by the Tremont Lumber Company; and it called the latter company in warranty to defend the suit.

That company objected to being thus called in, and, on exception of no cause of action, was dismissed from the suit, as not being the warrantor of the South Arkansas Lumber Company.

This judgment of dismissal it now pleads as res judicata of the present suit.

That judgment decided nothing, except that the South Arkansas Lumber Company was not entitled to call in the Tremont Lumber Company in warranty. It passed on none of the issues of the present suit; hence it cannot possibly be res judicata of the present suit.

In this court the defendant has pleaded the prescription of one year applicable to torts, and contends that the prescription began to run from the date of the taking of the timber, so that it had long accrued when the present suit was filed on October 16, 1914.

A person cannot bring suit until his...