Standard Lumber Co. v. Florida Industrial Co.

Decision Date11 May 1932
Citation141 So. 729,106 Fla. 884
PartiesSTANDARD LUMBER CO. et al. v. FLORIDA INDUSTRIAL CO. et al.
CourtFlorida Supreme Court

Suit by the Florida Industrial Company and others against the Standard Lumber Company and others. From an adverse decree defendants appeal.

Affirmed.

ELLIS J., dissenting. Appeal from Circuit Court, Lee County; George W. Whitehurst, judge.

COUNSEL

Kay Adams, Ragland & Kurz, of Jacksonville, for appellants.

E. J. L'Engle and J. W. Shands, both of Jacksonville, for appellees.

OPINION

DAVIS J.

This is an appeal from a final decree ordering the sale of the alleged equity of the appellant Standard Lumber Company in a large tract of timber in Lee county for alleged nonpayment of the remainder of the purchase price thereof as promised by appellant as purchaser. The amount of the decree was for an aggregate of $2,280,307.12, and the enforcement of the agreement on vendee's part was ordered to carry out performance of the terms of a written timber purchase contract shown to have been entered into between Standard Lumber Company, the appellant, on one side and the Florida Industrial Company and Consolidated Land Company on the other. The sale as required by the final decree was subsequently executed and confirmed by the chancellor.

On the issues made by a voluminous answer, to which was filed an equally voluminous replication, the case was tried before the chancellor himself in open court. Practically two weeks were thus consumed in the taking of testimony and in the proceedings at the trial.

The case is here on an appeal from the final decree. That decree found that the equities were with the complainants and against the defendants, that the evidence adduced failed to sustain the allegations contained in the answer and counterclaim of the defendant Standard Lumber Company, and denied to that company the affirmative relief prayed for by its answer and counterclaim. An appeal was also taken to the decree confirming the master's sale which was held pursuant to the final decree, but no particular error is assigned thereon independent of those argued with respect to the final decree.

By the bill, the Florida Industrial Company and its pledgee, the Barnett National Bank, sought to have performed the timber contract hereinbefore mentioned. The contract so sued on was made a part of the bill of complaint, and, according to its provisions, required appellant Standard Lumber Company to purchase on the terms of the contract, and pay for, a represented minimum of 550,000,000 feet of timber scattered over 275,000 acres of land in Lee and Hendry counties.

The bill alleged the making of the contract; the Standard Lumber Company's conveyance to the complainant vendor of tracts of Florida lands valued at $831,000, which were accepted as a credit on the purchase price; the giving by the vendee of notes for the remainder of the purchase price; that the purchase was made subject to an option to demand the cruising of the timber; that the option to demand a cruise of the timber was exercised, and that such cruise was subsequently made; that the cruise as made showed an excess of over 2,000 feet per acre; that after the cruise was reported that the timber had been partially cut by the vendee and partial payments made by it on its notes; that subsequently there was a default in the payment of certain other notes, interest, and taxes when due; that the Standard Lumber Company had announced abandonment of the contract on its part; that by reason of this fact the complainant had elected to accelerate the maturity of the remaining notes, and accordingly was claiming an alleged balance due of more than $2,000,000 on the purchase price. Appropriate relief by way of accounting and for enforcement of the contract was prayed.

Demurrers were interposed to the bill and overruled, after which separate answers were filed by the several defendants, including the Standard Lumber Company.

The answer of the Standard Lumber Company set up by way of counterclaim for affirmative relief that the vendor had caused the vendee to enter into the contract by fraudulent representations and concealments as to the quantity of timber on the tract, and as to what cruises had been made to ascertain the quantity and prayed for cancellation and rescission. It also averred that in various ways the vendor had represented and led the vendee to believe that the timber aggregated 550,000,000 feet, and would cut better than 2,000 feet per acre, considering the tract as a whole; that the timber had been cruised by several expert cruisers, each of whom had found on the tract more than 2,000 feet to the acre on the tract as a whole; that the areas purchased under the contract were so great, and the character of the timber so diversified, that the vendee in trading for it had to rely, and did rely, on the alleged false representations of the vendor; that the vendee, supposing the quantity of timber to be on the tract as represented by vendor, forthwith erected a saw-mill plant as provided in the contract at a cost of $1,500,000, and began operating it; that, however, after several months operation of this plant, vendee began to discover a very serious shortage in the timber; that this shortage ran from 35 per cent. to 50 per cent. of the amount of timber that had been represented; that after this the vendee learned that the cruises which had been represented as having been made before the contract was entered into had not been made as alleged; that subsequent to the execution of the contract, that the cruises demanded by the vendee had been so fraudulently manipulated through the activities of the vendor's cruiser, so as to show an increase in the amount of timber above what actually was on the land; that by reason of all this that vendee was kept in the dark as to the true status of the timbered land it was buying, during which time it built its sawmill plant, and continued to make payments to the vendee on the contract at the rate of $21,000 per month; that accordingly the contract should be canceled or rescinded, and defendant be decreed to have a lien for its advancement under it.

The vendor-complainant filed a lengthy replication denying in substance the charges of misrepresentations contained in the vendee's answer. It also asserted the further defense that the contract carried a clause which estopped and precluded the vendee from asserting any misrepresentations as to the quantity of the timber. This clause was as follows:

'The vendor has not made and does not make any representations or covenants regarding the quantity, quality or value of the timber covered hereby or any part thereof, nor the logging conditions in connection therewith, nor any other representations or covenants whatsoever relative thereto except those specifically set forth in this agreement, the purchaser having already made such examination as satisfied it regarding all matters (except title matters) connected with this agreement and relying solely upon such examination.'

The replication further set up that the vendee, long before it ceased cutting the timber, had acquired full knowledge of every fact and circumstance that it was attempting to plead in avoidance of the timber purchase contract, but took no action in regard thereto, and thereby waived its right to complain thereof.

The amount of the decree was based upon the minimum purchase price stated in the contract, climinating the increased amounts which would have been payable as the result of the joint timber cruise provided for in the contract to be made at the option of the vendee. This, the appellee contends, makes unnecessary any consideration of the charges of fraud the vendee makes with reference to the manner in which that cruise was carried out.

Appellant first contends that the timber contract sued on conveyed to the Standard Lumber Company no equitable title to the uncut timber, or other legal interest therein, such as would sustain appellee's bill, and that therefore the appellant's demurrer thereto should have been sustained. To support its argument, appellant cites the case of Prescott v. J. S. Betts Co., 81 Fla. 538, 88 So. 385, wherein it was held that an instrument in writing, under seal purporting to convey all the timber of certain description on certain lands under certain conditions, which required the payment of periodical sums of money before the grantee should have the right to cut the timber, would be construed to be a license to the grantee to enter and cut timber upon payment of the consideration named, and that payment was a condition precedent to the passing of title to the timber. That case was a suit at law in replevin. The contract involved was materially different from the one exhibited in this case.

The suit here, furthermore, is one in equity to require the Standard Lumber Company to perform its contract by making its agreed payments under it. While a judicial sale of the property may be ordered for the purpose of enforcing such agreed payment, a lien is not indispensably necessary to support a decree for such sale, and, if it were, a lien does in equity exist under the contract for the unpaid purchase price shown to have become due by the vendee under the vendor's contract to convey.

Here the contract involved is one by which in terms one of the parties as vendor agreed to sell and convey to the other as purchaser, and the purchaser agreed to purchase from the vendor, the timber described and referred to in the contract for a definite consideration, and upon certain terms and conditions. By that contract the purchaser specifically agreed to pay the vendor 'as the purchase price' for said timber certain amounts in and by the contract stipulated and agreed to be...

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16 cases
  • Harris v. State
    • United States
    • Florida District Court of Appeals
    • April 26, 2002
    ...against a party who, due to future circumstances, is unable to comply with the agreement, compare Standard Lumber Co. v. Florida Industrial Co., 106 Fla. 884, 141 So. 729 (1932), we note that the legislature's later passage of the Ryce Act did not render the state's future compliance with t......
  • Sisco v. Rotenberg
    • United States
    • Florida Supreme Court
    • July 9, 1958
    ...does equity require one to do useless or futile acts to obtain relief to which one is otherwise entitled. Standard Lumber Co. v. Florida Industrial Co., 106 Fla. 884, 141 So. 729. 'So the case here is one where there is an unambiguous option to renew provision and option to purchase provisi......
  • Allen v. State ex rel. Bd. of Trustees of Oklahoma Uniform Retirement System for Justices and Judges, 66522
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    • Oklahoma Supreme Court
    • September 20, 1988
    ...667, 1 L.Ed.2d 664 [1957]; Cohen v. Public Housing Administration, 257 F.2d 73, 77 [5th Cir.1958] and Standard Lumber Co. v. Florida Industrial Co., 106 Fla. 884, 141 So. 729, 732 [1932].33 The agency's adherence to the Attorney General's opinion was not unwarranted. The Board faced a peril......
  • Renard v. Allen
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    • April 29, 1964
    ...v. Sullivan, 7 Ill. 327, 334 (1845); Maya Corporation v. Smith, 240 Ala. 371, 199 So. 549, 554 (1941); Standard Lumber Co. v. Florida Industrial Co., 106 Fla. 884, 141 So. 729, cert. den. 289 U.S. 723, 53 S.Ct. 522, 77 L.Ed. 1474 (1932); Robinson v. Appleton, 124 Ill. 276, 15 N.E. 761, 762 ......
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