Steinhoff v. Kinder
| Decision Date | 02 April 1945 |
| Docket Number | 39180 |
| Citation | 186 S.W.2d 600 |
| Parties | Henry A. Steinhoff, Appellant, v. Otto V. Kinder, Elizabeth L. Kinder, Minnie Thoma, Fred W. Elfrink, Louis Borchers, Lena Thoma, and Louis A. Elfrink, Respondents |
| Court | Missouri Supreme Court |
From the Circuit Court of Cape Girardeau County Civil Appeal J Henry Caruthers, Judge.
Affirmed
Appellant in the brief says this is "a suit in equity involving the right to cut timber on 640 acres of land" which lies in three separate but adjoining sections in Cape Girardeau County. In the petition appellant asked judgment for $12,500 damages, or in the alternative that defendants be restrained from interfering with removal of the timber. The trial court found for defendants and plaintiff appealed.
February 6, 1941, the General Box Company owned the land. Plaintiff and one Patterson had a written agreement with the Box Company to purchase the land for $6,000, and on said date plaintiff and Patterson entered into a written agreement with defendants Kinder, husband and wife, to sell the land to them for $9600. The $9600 was paid by the Kinders April 10, 1941, and the Box Company made deed direct to them. Mrs. Kinder did not sign the contract of purchase, but as stated, the deed was to both Kinders. Under the contract with the Kinders plaintiff and Patterson reserved the standing merchantable timber, except mulberry and sasafras, and were to have one year from April 10, 1941, date of payment by the Kinders, to remove such timber. Later, plaintiff acquired Patterson's interest in the timber. Defendants, other than the Kinders, are purchasers of part of the land from the Kinders.
The Kinder contract of purchase, in addition to providing for removal of the timber in one year, also provided that during the year plaintiff and Patterson would have the right to operate saw mills on the land and have the right of ingress and egress, all "subject to the condition, however, that the land shall be cut over uniformly and completely, beginning at the northeast quarter of the northwest quarter of section 27, and upon the completion of that quarter, the adjoining quarter to the west", etc., setting out by specific description the order of removal. Later, the order of removal was modified by agreement. Hereinafter, defendant Kinder has reference to Otto V. Kinder.
February 25, 1942, defendant Kinder served notice on plaintiff to cease cutting and removing timber from the land within 10 days and that on March 8, 1942, he (Kinder) would take possession of the land and of all logs, and all of plaintiff's equipment on the land not removed by March 8. The notice stated that ingress and egress would be denied after March 8. At the time of the notice plaintiff had removed most of the timber from 400 acres of the land. The result was that plaintiff failed to get the timber from the remaining 240 acres, which timber he testified was of the value of $50 per acre.
Defendants answered separately. Defendant Kinder, in his answer, alleged that plaintiff breached the contract by failing to cut the timber in the order provided in the contract so the land "could be cleared for cultivation", and such alleged breach is pleaded as a bar to plaintiff's cause. That prior to February 25, 1942, plaintiff abandoned the cutting of the timber and advised him "that his (plaintiff's) operation was so expensive and entailed such a -reat loss to the plaintiff that the plaintiff could not afford to continue to attempt to cut the balance of the timber from said land." That there was an agreement and settlement with plaintiff regarding the remaining lumber, and that the notice given was "pursuant to the agreement", and was given "at the request and suggestion of plaintiff."
Defendant Kinder further alleged that it was a material consideration of the contract that the timber be cut completely and in the order set out in the contract; that plaintiff desired to cut certain piling ahead of the cutting of the other timber and sought permission to do so, which was granted, and that plaintiff agreed that if such permission was granted, and he failed to cut all the remaining timber he would pay for reasonable value of the piling; that from the time of giving the notice, February 25, 1942, until after April 10, 1942, the land was so wet, or so completely covered with water that it was impossible to profitably cut and remove the timber. It will not be necessary to deal with the answers of the other defendants.
It is conceded that the notice to cease removal...
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