Strother v. American Cooperage Co.

• Decision Date: 13 February 1906
• Citation: 116 Mo. App. 518,92 S.W. 758
• Parties: STROTHER v. AMERICAN COOPERAGE CO.
• Court: Missouri Court of Appeals

92 S.W. 758

116 Mo. App. 518

STROTHER v. AMERICAN COOPERAGE CO.

St. Louis Court of Appeals. Missouri.

February 13, 1906.

1. LOGS AND LOGGING — SALE OF TIMBER — CONTRACT—CONSTRUCTION.

A contract by the owner of certain timber, by which he granted and sold "all the ash timber of the diameter of 15 inches and under," standing on certain land, and providing that for each and every 1,000 feet of lumber cut from such timber, to be measured by Scribner's log measure, the sum of 30 cents per 1,000 feet should be paid, constituted a contract for the sale of all timber on the land 15 inches and under at the stump.

2. INJUNCTION—JURISDICTION — CONTINUING TRESPASS—MULTIPLICITY OF SUITS.

Where complainant alleged that defendants were daily cutting timber from his land over 15 inches in diameter, in violation of a contract of sale under which they were only entitled to cut timber under such size, the bill stated grounds for equitable relief by injunction, both to restrain a continuing trespass, and to avoid a multiplicity of suits.

3. EVIDENCE—WRITTEN CONTRACTS — EXPLANATION BY PAROL.

Where a contract for the sale of all standing ash timber on certain land of the diameter of 15 inches and under, was unambiguous, parol evidence that all of such trees on the land were hollow at the butt, was inadmissible to explain or qualify such contract.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by J. D. Strother against the American Cooperage Company. From a decree in favor of plaintiff, defendant appeals. Affirmed.

Brewer & Collins, for appellant. Farris & Oliver and C. G. Shepard, for respondent.

BLAND, P. J.

On April 13, 1903, plaintiff, by his attorney, C. G. Shepard, and P. P. Ferguson made and entered into the following contract: "This agreement made and entered into this, the 13th day of April, 1903, by and between J. D. Strother, of Pemiscot county, Missouri, party of the first part, and P. P. Ferguson, of Pemiscot county, Mo., party of the second party witnesseth: For and in consideration of the sum $100 cash in hand paid by the party of the second part, to the party of the first part, the receipt of which is hereby acknowledged and the further agreements, covenants, and stipulations herein mutually agreed to be kept, done, and performed, and the further sums of money herein agreed to be paid, the party of the first part does hereby grant, bargain, sell and convey to the party of the second part all of the ash timber of the diameter of 15 inches and under, now standing, being and growing on a tract of land containing 1,280 acres more or less, in township 18, range 11 E., in Pemiscot county, Mo., and being the land bought by J. D. Strother of Hunter and Davis; the said second party is to have the same time to cut and remove said timber as the first party has for moving timber on said land which yet belongs to him. The second party hereby agrees to pay to the first party for the timber above mentioned the sum of thirty cents per thousand for each and every thousand feet of timber so cut on said land, all of which said timber is to be measured by Scribner's log measure, said sum of 30 cents per thousand feet is to be paid monthly, for all the timber so cut the previous month; the second party agrees to enter on the removing of said timber on or before the 1st day of June, 1903, and use due diligence in the removing of said timber, and binds himself to cut and remove all of the merchantable timber hereby conveyed by the time heretofore given J. D. Strother for the removing said timber; the party of the first part hereby agrees that the $100 so paid on said timber as above mentioned, shall apply as payment on the first timber cut by the second party, and there shall be no money due under this contract for timber so cut until sufficient amount has been cut to cover the amount of $100 as aforesaid." Subsequently, Ferguson assigned and transferred the contract to the defendant, an Iowa corporation.

The evidence shows that plaintiff had purchased of the owner of the land, the standing timber on the 1,280 acres of land, mentioned in the contract; that this timber was largely ash, suitable for manufacturing into lumber, and that ash saw timber was worth $6 per thousand in the stick; that ash timber 15 inches and under at the stump was too small to be used as saw timber and was worth only 30 cents per thousand; that there was a considerable...