Vinaird v. Bodkin's Adm'x

• Decision Date: 12 June 1934
• Citation: 72 S.W.2d 707,254 Ky. 841
• Parties: VINAIRD et al. v. BODKIN'S ADM'X.
• Court: Kentucky Court of Appeals

72 S.W.2d 707

254 Ky. 841

VINAIRD et al. v. BODKIN'S ADM'X.

Court of Appeals of Kentucky

June 12, 1934

Appeal from Circuit Court, Ballard County.

Action by Ike Bodkin's administratrix against W. L. Vinaird and others. From the judgment rendered, the defendants appeal.

Reversed in accordance with opinion.

M. C Anderson, of Wickliffe, and Martin & Roberts, of Mayfield for appellants.

Wheeler Wheeler & Shelbourne, of Paducah, for appellee.

RICHARDSON Justice.

Donvin and Joe B. Du Poyster, on the 15th day of April, 1924, by a writing duly executed and delivered, conveyed to Ike Bodkin "all of the timber on a certain tract of land lying and being in Ballard and Carlisle Counties, Kentucky, known as the Fort Jefferson land and being the same land willed to the grantors by their grandmother, R. S. Du Poyster, lying south of the Logan line in the division of the Jacob Myers Treasury Warrant Survey," with this provision: "The timber sold and conveyed on this tract of land shall be all the timber lying at the bottom and south of the foot of the hill. No timber in the hills is conveyed by this contract."

Bodkin took possession of the land for the purpose of cutting and removing the timber covered by the contract. He continued to cut and remove it until the 6th day of October, 1930, when he entered into a written contract with W. L. Vinaird by which he sold him "all the timber, logs and trees, except the locust and mulberry, standing, lying and located on tract of land in Carlisle and Ballard Counties, Kentucky, known as the Du-Poyster land, containing about two thousand (2,000) acres, more or less, and known as the Fort Jefferson tract, and being the same land which was willed to Donvin and Joe B. Du-Poyster by their grandmother, R. S. DuPoyster, lying south of the Logan line in the division of Jacob Myers Treasury Warrant Survey." His deed contained this clause: "The timber sold and conveyed herein was conveyed to grantor, Ike Bodkin, by written deed and contract from Donvin and Joe B. DuPoyster, dated April 15th, 1924, and is of record in the office of the Clerk of the Ballard County Court. ***" By the contract, Bodkin sold him "a steam sawmill together with all the equipment and apparatus attached therewith, situated on the tract of land above described and is known as the Ike Bodkin sawmill." It reserved the timber growing on 180 acres of the land on the east side of the right of way of the I. C. Railroad Company.

J. P. Edwards was the father-in-law of Joe B. Du Poyster, and had been for years the "manager for the DuPoyster heirs," and looked after the timber; conducted the negotiations with, and completed the sale to Bodkin. After the sale of the timber to Bodkin, Edwards continued in charge of the hill land and timber reserved in the Du Poysters' deed to Bodkin. At the time of the sale to Bodkin, no sawmill was located on either the bottom or the hill land. As the consideration for the timber, Bodkin agreed to pay the $3,000 and build two 4-room cottages on the land. On account of the water necessary to operate a sawmill, Edwards agreed for Bodkin to locate a sawmill on the hill land or that portion of the Du Poyster land on which Bodkin did not purchase the timber. With the consent of Edwards, acting as manager for the Du Poyster heirs, Bodkin erected a building in which to house his sawmill, and built one of the two 4-room cottages he agreed to build on the Du Poyster tract, both of which he thereafter used until he sold out to Vinaird.

Before the trade between Bodkin and Vinaird was completed, in company with Forrest Flournoy, they went upon the land and examined the timber which Bodkin was proposing to sell to Vinaird. At that time Bodkin represented to Vinaird that he owned and was selling "all the timber south of the Logan line"; the Logan line being the north line of the Du Poyster tract. At that time Bodkin was under contract with Ballard county to furnish it, at $25 per thousand, 20,000 feet of bridge lumber. He proposed that, if they traded, for Vinaird to fill the order, Bodkin giving him credit therefor on the purchase price. They agreed on $3,000 as a value of the timber on the hill land; $2,000 for the timber on the "bottom land"; and $1,000 for the mill shed and cottage and the sawmill; the mill being priced by Bodkin to Vinaird at $550, the cottage at $200, the mill shed at $250. The total agreed consideration was $6,000, for which Vinaird executed and delivered to Bodkin his note, payable as set out in the written contract between them. The contract included a precipitating clause authorizing Bodkin to declare the notes evidencing the consideration, due and collectable on default of payment of any one of them at maturity. Their contract embraced these provisions: "The party of the second part (Vinaird) shall have the peaceable possession of the land as above described, subject to the terms and conditions of this contract during the life thereof. *** Second party shall not cut for Ike Bodkin, on his account, any timber except according to a written order containing the dimensions, number of feet and price per thousand, and which order shall be signed by Ike Bodkin."

Vinaird took possession of the sawmill, the mill shed, and the 4-room cottage used by Bodkin in connection therewith while he operated the sawmill, and began to cut and remove the timber from the "bottom land."

Prior to his sale to Vinaird, Bodkin had entered into a written contract with the Kentucky Utilities Company, authorizing it to construct a transmission line on and over the Du Poyster land, including the hill land. And, after he entered into the contract of the sale with Vinaird, the utilities company, with Bodkin's consent, widened its right of way by cutting and removing the timber therefrom. For the timber cut and removed by it to widen its right of way, it paid him $100, of which he paid Edwards $25, and repeatedly stated to disinterested persons that the money he had received for the timber cut and removed when the right of way of the utilities company was widened belonged to Vinaird, and that he would give Vinaird credit therefor on the purchase-money notes executed and delivered by him to Bodkin.

Under his purchase of Bodkin, Vinaird entered upon the land known in the record as the "bottom land," and began to cut, manufacture, and sell the timber. He manufactured and delivered to the county the bridge timber as he agreed with Bodkin he would do. He and Bodkin agreed that Vinaird would manufacture and deliver to Bodkin cypress boards. Of these, he manufactured 6,828, which were hauled and delivered to Bodkin by Wilson Hames. He also cut and delivered lumber to Bodkin on the place "where Abernathy lives," which was used by Bodkin. By the testimony of Flournoy, Vinaird agreed to manufacture 20,000 boards at $1.50 a hundred and deliver them to Bodkin "where Abernathy lives." Flournoy says that of the number contracted 6,000 were manfactured and logs were cut in board lengths to manufacture other boards. Bert Smith, a witness for the estate of Ike Bodkin, testified: "Vinaird and Bodkin were standing on the street and they called me (Smith) and I went where they were and Mr. Bodkin said what are you doing and I said nothing; he said do you want to cut some timber and I said yes I would like a job and he said Mr. Vinaird you hire this man he knows what logs I want for this box stuff and all the logs he cuts I will take them."

Smith was further asked and answered thus:

"Q. Did Mr. Bodkin buy any maple logs from Mr. Vinaird after Mr. Bodkin sold him that land? A. Yes, sir.

Q. How much did he agree to take? A. I never did hear Mr. Bodkin say how much he was to give.

Q. How many thousand feet was he to take? A. I didn't hear anything about how many thousand feet in the contract Mr. Bodkin and Vinaird went into. Nothing was mentioned about how many feet he was to take or what he was to pay for it. You understand what I was cutting of that timber on that piece of land on the DuPoyster land I was cutting good maple and Mr. Bodkin would take that from Mr. Vinaird, but I didn't hear the price. Of course, none of us knew how much or nothing was said about the number of feet.

Q. Do you tell the Court Mr. Bodkin agreed to take whatever amount of maple timber that met his requirements? A. The way I understood it Mr. Bodkin called me and asked me if I wanted to cut some timber. ***

Q. What did he say about the gum logs? A. This box timber was not supposed to be just gum or just maple. It was supposed to be logs sixteen inches or better gum or maple, with not over two knots. ***

Q. Mr. Bodkin did agree with Mr. Vinaird to take whatever gum and maple down on that place that met his requirement? A. That was my understanding. ***

Q. When was the contract made you say you heard about? A. It was sometime about the first part of January or February 1931. Just a while before Mr. Bodkin killed himself. ***

Q. Where were they (the gum and maple logs) delivered? A. At the DuPoyster spur. ***

Q. You think you cut around 30,000 feet? A. That is what I think I cut that would go to Mr. Bodkin. ***

Q. What was the difference in the character of timber in the bottom and the timber on the hill? A. There was a right smart difference in the grade of timber. ***

Q. You think the logs that met the requirement of Mr. Bodkin run around 40,000 or 50,000 feet? A. Yes, sir.

Q. You say you cut 30,000 feet? A. Yes, sir."

This witness testified he had cut timber on the land while Bodkin operated the mill, a quarter of a mile from the Logan line. He cut it from 200 to 300 yards up the hill above the mill; a portion of it for Edwards and the remainder for Bodkin. He further testified that before Bodkin purchased the timber "quite a number of ...