Teachout v. Clough

• Decision Date: 04 April 1910
• Citation: 127 S.W. 672,143 Mo.App. 474
• Parties: H. E. TEACHOUT, Appellant, v. I. T. CLOUGH et al., Respondents
• Court: Missouri Court of Appeals

127 S.W. 672

143 Mo.App. 474

H. E. TEACHOUT, Appellant, v. I. T. CLOUGH et al., Respondents

Court of Appeals of Missouri, Springfield

April 4, 1910

Appeal from Dent Circuit Court.--Hon. L. B. Woodside, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

E. W Bennett and W. G. Harvison for appellant.

(1) "Saw Timber," as a matter of law, and in the light of the testimony, embraces all trees of every variety whatsoever, including all species of oak, not less than six inches, and certainly not less than eight inches at the butt found on the premises in controversy. 28 Am. and Eng. Ency of L. (2 Ed.), 536; 26 Am. and Eng. Ency. (2 Ed.), 453; 19 Am. and Eng. Ency. (2 Ed.), 523; 25 Cyc. 1545; Keeton v. Audsley, 19 Mo. 362; United States v. Stores, 14 F. 824; Kolloch v. Parcher, 52 Wis. 393; State v. Addington, 121 N.C. 538; Alcutt v. Lakin, 33 N. H. (2 Fogg.) 507; Putney v. Day, 6 N.H. 430; Olmstead v. Niles, 7 N.H. 522; McCauley v. State, 43 Tex. 374; Bustamente v. U.S. 42 P. 111; Liu Kong v. Keahialoa, 8 Hawaii, 511. (2) The "saw timber," as defined in proposition one, having been reserved, the title thereto remained in Teachout. The defendants, therefore, should have been enjoined from cutting the same. 13 Cyc., 679.

Gratia E. Woodside, J. J. Cope and W. N. Jordan for respondents.

(1) In order to support an injunction, the petition should clearly state facts sufficient to show the right of the petitioner, should show title in him and should allege that defendant is insolvent and that the plaintiff has no adequate remedy at law. One out of possession cannot maintain injunction. Powell v. Canady, 95 Mo.App. 713; Gildersleeve v. Oberstolz, 97 Mo.App. 304; Railroad v. Maddox, 92 Mo. 469; Victor Mining Co. v. Mining Co., 50 Mo.App. 526. (2) An injunction is not the proper remedy in this case. High on Injunctions, ch. 17, sec. 695, ch. 6, sec. 339; 22 Cyc., 750; Chouteau v. Railway, 22 Mo.App. 286; 22 Cyc., 855; Consolidated Fast. Co. v. Mfg. Co., 81 F. 383. (3) The intent of the parties at the time of entering into the contract will govern in the interpretation of it. Carter v. Foster, 145 Mo. 383; Meyers v. Christopher, 176 Mo. 580; St. Louis B. & L. Ass'n v. Ohert, 169 Mo. 507; Jewelry Co. v. Bertig, 81 Mo.App. 393.

OPINION

NIXON, P. J.

The parties to this suit were residents of the State of Iowa on March 5, 1909, on which date the appellant conveyed to the respondents some four hundred acres of land situated in Dent county, Missouri. Prior to the execution of the deed, there had been a written proposition between the parties which respondents had accepted, by which it was agreed that the land should be conveyed to the respondents, subject to a reservation in these words: "And timber reserved." Subsequently, on the 4th day of March, 1909, another contract was entered into by which respondents agreed to exchange their seventy acres in Iowa for the four hundred acres in Dent county, Missouri, which contract contained this reservation: "And the saw timber on the above land is reserved by the second party for a period of ten years." And on the 5th day of March, 1909, appellant and his wife made a deed, pursuant to the articles of agreement, containing the reservation, "And the saw timber on the above land is reserved by the second party for a period of ten years." The controversy in this case arises over this reservation.

After the execution of the deed, the respondents moved to Dent county, and prior to the commencement of this suit, had been cutting trees off the land conveyed to them by said deed, perhaps some sixty or seventy thousand feet in all, and manufacturing it into crossties. Immediately prior to the filing of the suit, the respondents had advertised for fifty men to make ties on this land. The ties were made out of the oak timber, and respondents had been cutting timber off the land which measured from twelve to twenty-four inches in diameter. Some of the timber still growing and uncut on this land would be of that size. The day before suit was begun, an agent of appellant notified respondents not to cut any more timber and they stated that they would unless lawfully stopped. The land was hilly and some of it rocky and none of it was good farming land or in cultivation; it was wild and uninclosed timber land, and the principal value of the land lay in its timber.

No question was raised as to the right of appellant to the pine timber growing on the land. The testimony tended to show that there was some four thousand feet of timber to the acre still standing on the land, and that it would be worth from one to two dollars a thousand. The amount of the pine timber on the land was estimated at one thousand feet to the acre of the value of two dollars a thousand.

A preliminary injunction was granted on application of the appellant.

At the trial, evidence was introduced by both parties as to the history of the reservation of the timber and explaining why the word "timber" in the preliminary contract was changed to "saw timber" in the deed. On the part of the appellant, the following witnesses testified:

B. F. Burwinkle stated that he was a real estate dealer residing in Des Moines and that respondents listed property with him to be traded for Missouri or Texas land, and which was traded to the appellant, Teachout; that he and W. H. Wilson represented Mr. and Mrs. Clough in making the exchange of the properties, receiving a commission from Clough, and that they did not in any way represent Teachout in the trade.

W. H. Wilson testified that he assisted Mrs. Burwinkle--her husband being away at the time--in making the trade between the parties; that he formulated the terms of the preliminary contract or proposition to Teachout, which, after Clough had signed, was submitted to and executed by Teachout. That afterwards, a second contract was drawn which was signed by Clough and his wife in the office of Burwinkle, but that before executing it, they took it to their attorney and secured his approval, and upon returning said it was satisfactory with the exception that they wanted "saw" put before the word "timber" so as to give them permission to get fire wood off this land, and Clough said, "This will give Mr. Teachout all the timber; in other words, all the saw timber on the land for ten years."

Mrs. Burwinkle stated that the proposition to make the trade was made to Teachout through her. The trade was to the effect that Teachout was to have seventy acres belonging to respondents subject to a four thousand dollar mortgage. Teachout was to reserve all the timber. Afterwards, Clough wanted the privilege to get enough fire wood and it was agreed to put in the words "saw timber," and anything big enough was reserved to Teachout for a period of ten years. When the contract was drawn up and ready to be signed, the word "saw" before the word "timber" was not used, and Clough insisted that it be so used so that he could have a right to use the underbrush for any fire wood he needed, and the word "saw" was written in before the word "timber." Clough said, "If the term 'saw timber' is used, that will give Mr. Teachout all the timber big enough to saw and will reserve me the right to the underbrush and fire wood."

A. E. Fletcher, engaged in the real estate business in Iowa, stated that he met Mr. and Mrs. Clough in Burwinkle's office in March, 1909, and heard a conversation between them about written articles for the trade of land in Dent county which Clough was negotiating for. At first all the timber was reserved in the contract. Clough wanted it changed so he could use the underbrush and fire wood, and the word "saw" was then written in the contract before the word "timber." This was Clough's statement to Wilson, and Wilson said, "We will arrange it by writing in 'saw timber' instead of just 'timber.'"

H. E. Teachout stated that he resided at Des Moines. Upon being shown the preliminary contract with respondents, he stated that he entered into the contract on February 27, 1909; that the contract was presented to him by W. H. Wilson and that he had no conversation with Wilson about it before he signed it. "I received a deed from Mr. Clough and delivered a deed to him for my property in Missouri under this contract. I read the contract before I signed it and understood the words 'saw timber' to mean all standing timber capable of being sawed into lumber or timber. Neither Mr. and Mrs. Burwinkle nor W. H. Wilson represented me in this matter."

The defense introduced the following witnesses on this question:

"S D. Clough stated that he formerly lived in Des Moines but now lived in Dent county, Missouri. In the trade with Mr. Teachout, he told me that Wilson represented him. When these papers were drawn up, I understood the term 'saw timber' to mean a pine board twelve inches square or fourteen feet from the ground. I have an envelope which I am now reading from; it was written in Teachout's office in his presence some time before the 2d day of March, 1909. The contract was written with the word 'timber' in it, and I would not sign it with that word unmodified as the contract did not represent the agreement between me and Teachout and I insisted that such contract be incorporated in the contract. Mr. Wilson characterized it as a 'rig-a-ma-role,' and said it would be a laughing stock if it were interlined in the contract in the manner in which I had written it on the envelope. Mr. Wilson said at that time that Mr. Teachout would give me the timber that he agreed to, and I insisted on the entire agreement as written on that envelope being incorporated in the contract. Wilson said, 'I haven't room to write it in the contract and Teachout has already signed it.' Mr. Jordan...