204 F. 181 | 5th Cir. | 1913
(after stating the facts as above). Under the decision of this court (Lewis v. Dillingham, 167 Fed. 779, 93 C. C. A. 267) Lewis, at the institution of the proceedings against him, was the owner of the land in contest. Lewis' deed to Coku, duly recorded, conveyed the north one-half, so that at the time the trespass was committed, and the timber cut and removed, by the receivers of the Houston Oil Company of Texas and the receivers of the Kirby Lumber Company acting in conjunction, Lewis and Conn were the parties damaged.
Conn is the only appellant now before this court, but in order to grant him the relief to which we think he is entitled, and yet do justice, it is necessary to pass upon the claims of the interveners and cross-complainants, appellees, whose rights are involved.
“It is expressly understood that the said George "W. Cavin agrees, by acceptance hereof, to cut and remove said timber above conveyed from the above-described land, within a period of 10 years from date hereof, failing so to do, title -thereto shall revert to and vest in grantor herein.”
Cavin paid the $200, but thereafter cut and removed no timber from the Lewis tract, nor took any steps to assert any right thereto until after Conn filed his intervention in October, 1909. The contract as shown by the deed is admitted; but the contention below and here is that it was, and is, only a license to Cavin to enter and cut and remove th'e timber within the limited period, and until the timber should be cut and removed, and paid for, it belonged to Lewis, and it is pointed
The agreement between Lewis and Cavin is an executory contract of sale of standing timber, on which there was a price fixed and a small advance paid, but delivery was postponed; and, pending the time given to Cavin to remove the timber agreed to be sold, the same has been, and without the fault of the owner, wrongfully carried away and converted, and the question here is what are Gavin’s damages recoverable in this suit. He is entitled to recover the $200 paid to Lewis in advance, with legal interest thereon from the date of payment. If he had ever paid Lewis for the timber, and been diligent in the protection of his rights, he might be entitled to the full value of the standing timber at the time it was cut and removed; but he did not pay Lewis, nor did he defend. The decree below allows him the $200 advance payment, and further allows him 75 cents per 1,000, the difference between the $2.25 agreed to be paid by Lewis and $3, the value the court fixed for the standing; timber.
It may be that Cavin had a shadowy inchoate equity to be protected by the court, but we have difficulty in locating it. He had no claim against Lewis, even for the advance, for Lewis neither sold nor removed the timber; and it is by no means clear that he had any actionable claim against the receivers, for he was not the owner nor in possession of the timber. The amount allowed Cavin by the decree below is liberal, as we view the facts in the case; but as he has not appealed, and we cannot deny that he has some equity in his claim, we will affirm the decree in his favor.
I ^ j Appellee Hamman claims relief in this case by reason of a written assignment as follows:
“Know all men by these presents, that I, George W. Lewis, of the aforesaid state and county, for and in consideration of the sum of one dollar (81.00) to me in hand paid by John Hamman, the receipt whereof is hereby fully acknowledged, and for the additional consideration of services heretofore rendered by him to me in cause No. 1871, entitled G. W. Lewis, Appellant. v. (diaries Dillingham, Receiver of Houston Oil Company of Texas, Appellee, in the IT. S. Circuit Court of Appeals, Fifth Circuit, at New Orleans. hare sold, assigned, transferred, and set over, and by these presents do sell, assign, transfer, and set over, unto said John Hamman, of Houston, Harris county, Texas, a full one-lialf (%) of any and all sums of money whatsoever to me inuring or accruing under and by virtue of a certain conveyance by me made to George W. Cavin, under date of October 2, 1906, ánd of record in the records of Newton county, Texas, to which said conveyance and the aforesaid record reference is hereby made. It is the intention hereby to set over to*194 the said John Hamman a full one-half (%) of all moneys inuring or accruing to me under and by virtue of the terms of said instrument, and to vest in him an equal right with myself therein, as well as in all rights whatsoever vested in me thereby, he, the 'said Hamman, being hereby subrogated to the said extent in and to my place and stead under said instrument, he being hereby authorized and empowered to collect from said Oavin one-half (%) of certain moneys as may accrue to me under said conveyance. To have and to hold the same unto the said John Hamman, his heirs and assigns, forever, free of all claims and demands whatsoever of myself, my heirs and assigns.
“In testimony whereof, witness my hand, this transfer being executed in duplicate, this March 20, 1909. [Signed] G. W. Lewis.”
This document seems to be an assignment in consideration of legal services theretofore rendered on the former appeal in this case of one-half interest in a claim Lewis was supposed to have against Cavin growing out of the timber contract between Cavin and Lewis. The assignment was made at a time when Cavin owed Lewis nothing, for-he had not removed nor cut any timber under the contract, and after the receivers had already cut and removed all the timber from the Lewis tract, and there was no possibility that the contract could be further executed, so as to give Lewis any claim enforceable against Cavin.
In this present suit neither Lewis nor his assigns recover anything from Cavin by reason of the contract. On the contrary, in the decree below and in this court, Cavin practically recovers from Lewis on the nebular theory that if he had paid Lewis for the timber he would have made a profit of 75 cents per 1,000 feet out of the trespass of the receivers. Hamman has not proved in this case the extent or value of the services rendered Lewis on the former appeal in this court, and Lewis may be indebted to him for such services, and the assignment relied on furnishes no guide to adjudge any amount he may be entitled to recover in this case.
In the brief filed by appellee Hamman in this case, and signed by him as associate counsel, it is alleged that George W. Lewis was a poor, old, uneducated man, and it was not only proper, but commendable, for the court in the exercise of its equity powers to award this unprotected old man what the evidence established was his rights. This is advanced as a reason why Lewis’ assignment to Conn was properly disregarded, and Conn’s claim cut down to the actual advances of cash and property made by him, and we think it is equally good as applied to Hamman’s assignment, obtained from the same “poor, old, uneducated man.”
As the proof furnishes us no basis for determining the real amount due Hamman, we shall sufficiently recognize his demand by allowinghim in the decree to be rendered such amount for his professional services in the former litigation as the parties may agree, subject to the arbitrament and approval of the court below.
George W. Lewis, the central figure in this litigation, without being made a party to the same, and after giving his evidence, of his own motion and apparently without objection, appeared by counsel and filed an entitled answer in the case as follows:
“Now comes G. W. Lewis, by bis attorney herein, and makes and files this his answer to the pleadings of the defendants herein.
*195 “I. Tlio said G. W. Lewis refers to and adopts as Ms own pleadings the pleadings of the plaintiff herein, It. 0. Conn.
“11. The, said Lewis admits all allegations in the pleadings of the plaintiff herein, and says the matters and things therein alleged are true.
“ill. The said Lewis prays that judgment be rendered herein for the said plaintiff as prayed for by him, and that the said Ilamman and Gavin be adjudged to recover nothing.
“John B. Warren, Attorney for G. W. Lewis.”
From which it appears that he informally joins intervener Conn as co-complainant.
The decree of the court below is reversed, and this cause is remanded, with instructions to enter the following decree:
It appearing to the court that the receiver of the Houston Oil Company of Texas and the receivers of the Kirby Lumber Company, acting together, during the months of October, -November, and December, 1908, and January, 1909, cut and removed from the 160 acres of land of the W. C. Armstrong survey, in Newton county, Texas, the property of George W. Lewis, 1,198,500 feet of timber without right, and should account for the same, and the court finding that the said Houston Oil Company of Texas and the said Kirby Lumber Company and the receivers thereof, which have since been discharged by the court — jurisdiction, however, being retained over the same and the,said companies and the properties thereof until the disposition of all pending interventions, of which this is one — are liable for the value of said timber so cut and removed, which the court finds and declares to be the sum of $5 per 1,000 feet, amounting to the sum of $5,992.50, it is accordingly ordered, adjudged, and decreed that the defendants, the Houston Oil Company of Texas and the Kirby Lumber Company, pay into the registry of this court said sum of $5,992.50 in full settlement and satisfaction of the claims of all the parties hereto to said timber so cut and removed, which sum shall be distributed among the parties hereinafter named, but this decree as against said companies shall in no wise prejudice the rights of either company against the other; and it further appearing to the court that George W. Rewis did on the 2d day of October, 1906, convey to the defendant George W. Caviu the right for a period oí ten years to cut and remove the said timber from the lands aforesaid in consideration of the sum of $200 advanced and the payment thereafter of $2.25 per 1,000 feet of timber as same should be removed and scaled, and it further appearing that the intervener R. C. Conn had notice of the conveyance of such
It is further ordered and decreed that the remainder of the said sum of $5,992.50 be paid over to intervener R. C. Conn, who is hereby adjudged the trustee therefor of George W. Lewis, and. which, after he has paid himself the advances of cash and property heretofore made by him to said Lewis, with interest thereon to this date, and his proper expenses and disbursements as trustee, and shall have paid and settled attorney’s fees and other legitimate charges, he shall account for and pay over to said George Lewis; all subject to the approval and arbitrament of the judge of the court below.
It is further ordered, adjudged, and decreed that all costs be paid by the defendants the Houston Oil Company of Texas and the Kirby Lumber Company, and that the clerk shall not make up the final record herein unless, upon application of the parties in interest, the court may order it done.