Southern Pine Lumber Co. v. Nemer

• Decision Date: 10 May 1929
• Docket Number: (No. 9289.)
• Citation: 17 S.W.2d 852
• Parties: SOUTHERN PINE LUMBER CO. v. NEMER et al.
• Court: Texas Court of Appeals

17 S.W.2d 852

SOUTHERN PINE LUMBER CO. v. NEMER et al.

(No. 9289.)

Court of Civil Appeals of Texas. Galveston.

May 10, 1929.

Appeal from District Court, Anderson County; Ben P. Dent, Judge.

Action by Saba Nemer and another against the Southern Pine Lumber Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

R. E. Minton, of Lufkin, for appellant.

A. M. Barton, of Palestine, and Paul S. Colley, Jr., of Dallas, for appellees.

LANE, J.

This suit was brought by Saba Nemer and A. Sawyer against the Southern Pine Lumber Company to recover judgment for the following named several sums: $578 for the value of merchantable timber cut from lands owned by plaintiffs; $500 for the value of young timber cut from said lands; and $500 for alleged damages to said land by reason of defendant's trespass upon the same.

Defendant answered by a general demurrer, special exceptions, a general denial, and by a plea of contributory negligence on the part of plaintiffs in that they failed to remove the timber cut by defendant and sell the same.

The cause was tried before the court without a jury. Defendant's general demurrer and special exceptions were overruled, and judgment was rendered for the plaintiffs for the sum of $150. The defendant has appealed.

In response to the request of the defendant, the trial judge filed the following findings of fact and conclusions of law:

"Findings of Fact.

"That for many years and prior to December, 1922, the plaintiffs were the owners in fee simple of one hundred eighty two acres of land on the Killion survey in Anderson County, Texas, and other tracts of land aggregating three hundred, more or less, on the M. Ellis survey in Anderson County, Texas.

"That the pine timber on said various tracts of land owned by plaintiffs was sold by them after said date to different parties. That the Southern Pine Lumber Company, the defendant, by purchases of grantees of plaintiffs became the owner of the timber situated on the land of plaintiffs. That the time for cutting said timber and removing same from the land was about to expire during the summer of 1925 and that the defendant began negotiations with the plaintiffs for an extension of time for the cutting of said timber.

"Negotiations finally resulted in the purchase by the defendant from the plaintiffs of a tract of land on the M. Ellis survey, containing the best timber.

"That as a part of the considerations for the purchase of said land the defendant agreed to release the timber on all other lands belonging to the plaintiffs not so purchased.

"I find that Adam Cone and D. C. Kenley represented the defendant in these negotiations. That both D. C. Kenley and Adam Cone represented to the plaintiffs that the timber on the land not purchased would be released to them, and the plaintiffs relied on such representations and executed the deed to the lands.

"That after the purchase of the land and timber on the Ellis survey the defendant went on the Killion survey and cut the timber, which under the agreement and sale contract had been released.

"That 50,000 feet of timber was cut and that the market price of said timber was $3.00 per thousand.

"Conclusions of Law.

"I conclude as a matter of law that the plaintiffs are entitled to judgment against the defendant for One hundred & fifty ($150.00) Dollars for the timber so cut."

By the plaintiffs' original petition, they alleged that on the 15th day of October, 1925, they were the owners and in lawful possession of certain land, which is described by metes and bounds; that on said day and year there was growing certain timber on the land, and that on said day and year they were the owners of such timber, and that on said date defendant, without their knowledge or consent, unlawfully entered upon the land and cut the timber growing thereon to their damage, etc.

In their first-amended petition, upon which they went to trial, evidently intending to repeat the allegations relative to the dates of their ownership of the land and timber and the cutting of the timber by defendant, as set out in their original petition, plaintiffs alleged that on the 15th day of October, 1926, they were the owners of the land and timber and that defendant cut the same on October 15, 1925.

The general demurrer addressed to the amended petition is in these words: "That plaintiffs' First Amended Original Petition, now on file herein, is insufficient in law and of this it prays judgment of the court."

By its first assignment appellant insists that the court erred in overruling its general demurrer. Appellant contends that, since by the amended petition upon which the plaintiffs went to trial they had alleged that they were the owners of the land and timber on October 15, 1926, and that on said October 15, 1925, the defendant unlawfully cut the timber, for the value of which they sue, there was no allegation that plaintiffs owned the land and timber on the 15th day of October, 1925, the time it was cut, and therefore the petition was subject to the general demurrer addressed to it.

We think the general demurrer was properly overruled. It is true that the abandoned petition cannot be looked to to supply deficient or erroneous allegations in the trial petition; but we think the apparent clerical error in stating that the plaintiffs owned the land and timber on the 15th day of October, 1926, instead of October 15, 1925, is substantially corrected by other averments in the amended petition.

After alleging in the fourth paragraph of this amended petition that defendant had unlawfully cut certain timber on said 15th day of October, 1925, the plaintiffs further alleged in such paragraphs that defendant had by such act converted the timber to its own use and deprived plaintiffs of the value of the same; that defendant had cut other timber and left it on the ground to rot, where it became useless and valueless to plaintiffs, whereby the defendant deprived plaintiffs of the value thereof. And again: That by such acts plaintiffs were deprived of the benefit and value of such timber to which they were lawfully entitled, and that by the unlawful trespass, the cutting and destruction of the timber by defendant, plaintiffs have been damaged in the several sums sued for.

The plain inference from the pleadings is that the land and timber at the time it was cut and appropriated by defendant to its use, or cut and allowed to rot, belonged to the plaintiffs, and it cannot, we think, be said that they are wholly defective, or such as could be reached by a general demurrer, because when a pleading is attacked by general demurrer, every reasonable intendment will be indulged in its favor, and it is clearly a reasonable intendment that the plaintiffs were suing for the value of timber belonging to them and of which they had been deprived by the defendant.

On general demurrer a pleading should be liberally construed, and all reasonable inferences from the facts alleged therein as a whole should be made in aid thereof. St. Louis Southwestern Ry. Co. v. Rollins (Tex. Civ. App.) 89 S. W. 1099; Brackenridge v. Claridge (Tex. Civ. App.) 42 S. W. 1005; Landrum v. Stewart (Tex. Civ. App.) 111 S. W. 769; Ramon v. Saenz (Tex. Civ. App.) 122 S. W. 928; Trezevant & Cochran v. R. H. Powell & Co., 61 Tex. Civ. App. 449, 130 S. W. 234; Gibbens v. Bourland (Tex. Civ. App.) 145 S. W. 274; National Lumber & Creosoting Co. v. Maris (Tex. Civ. App.) 151 S. W. 325; Hoechten v. Standard Home Co. (Tex. Civ. App.) 157 S. W. 1191.

It is no error to overrule a general demurrer to a petition the allegations of which are sufficiently full to apprise the defendant of what it would be called on to defend against. M., K. & T. Ry. Co. v. Farris (Tex. Civ. App.) 120 S. W. 535.

Appellant's assignments 2, 3, 4, 5, and 6, respectively, are as follows:

"2. The court erred in his finding of fact No. One.

"3. The court erred in his finding of fact No. Two.

"4. The court erred in his finding of fact No. Three.

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