Wheeler v. Cleveland

• Decision Date: 04 May 1910
• Citation: 170 Ala. 426,54 So. 277
• Parties: WHEELER v. CLEVELAND ET AL.
• Court: Alabama Supreme Court

54 So. 277

170 Ala. 426

WHEELER v. CLEVELAND ET AL.

Supreme Court of Alabama

May 4, 1910

Rehearing Denied Jan. 12, 1911.

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Felix Cleveland and others against E. M. Wheeler for breach of contract.Judgment for plaintiffs, and defendant appeals.Reversed and remanded.

The contract made between the parties was that Felix Cleveland and others sell to Wheeler all of the fallen timber and all of the trees the entire tops of which had been broken off by the storm, now lying or standing upon all the lands now owned by the said party of the first part on certain lands described by government subdivision, said land to be pointed out by the seller.The agreement was to pay $5 per thousand feet, board measure, for said trees net to the seller payable as the timber is measured in Chickasabogue or Bayou Sara, and to be measured at the expense of the buyer.It is further agreed that it should be measured weekly by public inspection, to be designated by the first party or seller who shall be satisfactory to both parties.Then follow several names of public inspectors who may be designated from time to time.It is further agreed that the cutting should begin on November 1, 1906, and that there shall be cut and made ready for inspection 50,000 to 60,000 feet on an average each week during any one month, and that the whole timber shall be cut and ready for inspection at the time of payment on or before March 31, 1907, and that, if any portion remains on the ground on that day, it shall be at once measured and paid for as soon as measured, and shall be removed by the party of the second part not later than six months from that date, and that any timber or trees not moved within that time revert to the party of the first part.Then follows agreement as to how the measurement is to be made, and that the trees covered by the contract shall be all fallen timber and broken trees, that shall make a log 16 feet long with a diameter of 8 inches at the blossom end that are suitable for lumber.The breach alleged is that the defendant did not cut and remove the trees specified in the contract, and had not paid the plaintiffs therefor as requested, although often requested to do so.

The pleas set up that Cleveland and his associates agreed with defendant that the said Cleveland would take and log the timber embraced in the contract, and that said Cleveland did thereafter log a large portion of said timber, and sold and disposed of the logs obtained, and retained the proceeds thereof, and that his logging terminated about April 1, 1907.The third plea is that on the 1st day of November, 1906 Cleveland released and discharged said defendant from any liability or obligation to take or pay for the trees or timber.The fourth plea is that said Cleveland, acting for the others, took possession and control of all of the timber and trees mentioned in the contract, and for several months thereafter logged the same, until they had appropriated to themselves nearly all of said timber, including the larger and more valuable and more accessible timber and trees, thus releasing defendant from any obligation under the contract.The fifth plea sets up the plea to notify the defendant that he and his associates would log the timber and trees embraced in the contract, that they did not need the assistance of the defendant and did not care to divide the profits of the enterprise, and that thereafter they did proceed to log said timber until the far greater portion of the logs had been gotten out and retained by the plaintiffs, all of which was done prior to April 1, 1907.

Plaintiffs filed replications to the second, fourth, and fifth pleas separately, setting up that the defendant did not, on the 1st day of November, 1906, do the matters and things alleged in said pleas, but that on December 1, 1906, the defendant had failed to carry out the contract, and stated to the plaintiffs that he was unable to, and would not, carry out the contract, and that because of said action and declaration by the defendant, and for the purpose of saving the timber which had blown down from decay, and to save plaintiffs from loss by reason thereof, they did thereafter cut up and log a large quantity of said fallen timber covered by said contract, to wit, 433,708 feet, board measurement, and placed the same in the waters of Bayou Sara and Chickasabogue for the purpose of preservation and marketing, and have sold part of said timber, and the remainder is still undisposed of in said waters, and the damage alleged in the complaint is the difference between the amount plaintiffs would have sustained, except for their said action in cutting up and saving part of said trees, and the amount that they so saved.

The following is the oral charge of the court excepted to "Now, if you find for the plaintiffs, the measure of damages would be the difference between the prices they agreed to sell the timber to the defendant, and the profit he made by partially logging the land, with interest from April 1, 1907; but the plaintiffs cannot recover beyond the amount claimed in the complaint, $2,500, with interest from April 1, 1907."

The following charges were refused to the defendant: (6)"The court charges the jury that, if the plaintiffs be entitled to recover for a breach of the contract sued upon the measure of their damages will be the difference between the contract price agreed to be paid for materials embraced in the contract and the reasonable value of such material at the time that such breach of the contract took place; and, if such value has not been shown to the reasonable satisfaction of the jury, then the plaintiffs' recovery must be limited to nominal...