DeVane v. Plunkett, 34 Ga. App. 677

DeVane v. Plunkett

34 Ga. App. 677 | Ga. Ct. App. | 1925

Bloodworth, J.

(After stating the foregoing facts.) The foregoing statement of facts, in connection with the opinion of the judge in sustaining the demurrer to the petition and dismissing the case, will make clear the issues involved and the rulings of the court. The opinion is as follows: “At the appearance term of this case an order was passed by the court upon the call of the appearance docket, providing for a hearing of the defendant’s demurrer to the plaintiff’s petition, at chambers, at Cordele, Ga., on the 4th day of September, 1925. On September 4, 1925, at chambers, at Cordele, Ga., counsel for plaintiff and the defendant were each heard on such demurrer, at which time the plaintiff presented the court an amendment to his petition, which was allowed, subject to demurrer, as will appear by order of the court endorsed thereon. At the same time the defendant made and filed a demurrer in writing to the said amendment of the plaintiff, upon which was entered this day an order sustaining the same. After argument on the original demurrer of the defendant, the plaintiff’s amendment, and the defendant’s demurrer thereto, by consent of counsel for both sides the case was taken under consideration by the court, to be decided at the convenience of the court, counsel for each side to have the privilege of submitting briefs. A law brief from the plaintiff’s counsel has been received and duly considered.

*679“After consideration, I.am of opinion that the contract entered into by correspondence between the plaintiff and the defendant, as disclosed by the petition, is too vague, uncertain, and indefinite to be enforced by a decree for the specific performance thereof, or that damages could be awarded for a non-performance thereof. The writings do not show what size trees of either of the kinds of timber sold were to be cut, removed, and paid for. It is common knowledge that where the kinds of timber or trees named in the writings are to be found in this section, the trees are of varying size. It probably also could be said that it is a matter of common knowledge that the large and long-bodied trees of each of the kinds named in the writings, when used for sawmill, or lumber, or stave, or piling, or other purposes, command a higher price per thousand feet than the smaller trees, and that small saplings and trees of small diameter are generally worthless for such purposes. The writings showing that payment was to be made per thousand feet, it is but natural that it was contemplated that the timber mentioned was to be used for some of or similar purposes above named. There is nothing showing that the parties entered upon the lands' and marked any of the trees cwe looked at.’ If this had been a sale of the timber on the lands mentioned for a certain amount in money, and there had been no restrictions in the writings or reservations as to the size of trees to be cut, then it probably could be said that all of the timber on the lands suitable for the purposes contemplated was sold and should be paid for at the lump price. But this contract was executory. Of course, so far as executed by the defendant entering upon the lands and cutting timber, payment for the timber cut, at the price agreed on, could be enforced; but this suit is one for damages for failing to cut timber of different kinds and to pay for the same at the price per thousand feet that the trees cut produced in lumber or would scale. It is like it was a suit to force the defendant to enter upon the lands described and cut timber therefrom. Could the court say by its decree that the buyer should cut and pay for trees of this or of that size ? If it could not, then can the court say that the plaintiff has been damaged in any. certain amount for the failure of the defendant to cut, remove, and pay for any particular timber ?

“Standing trees being part of the realty, contracts for the sale *680thereof must be in writing. We' must look to the writing (in this case the correspondence between the parties) to see what the contract is. We can not add to its terms by parol (as the plaintiff ■seeks by his amendment). But it is argued by the plaintiff’s counsel that the defendant bought ‘the timber we looked at,’ and that he entered upon the lands and began cutting after paying a certain sum of money. Could a court, in a specific-performance case, decree that the defendant must take the timber ‘we looked at’ where payment is to be made by the thousand feet? The timber ‘we looked at’ was some part or all of the timber on the three plantations mentioned. What part of it was ‘looked at ? ’ Was all of the timber on the three plantations mentioned ‘looked at?’ If so, then what size trees were ‘looked at?’ It seems to me that something more definite and certain than that is required to make a contract binding so that damages for nonperformance can be awarded. For these reasons the defendant’s demurrer is hereby sustained and the plaintiff’s case dismissed.”

While not committing ourselves to every statement made by the learned judge in this opinion, we do agree with him in most of his conclusions, and especially that the amendment to the petition was subject to the demurrer, and that “the contract entered into by correspondence between the plaintiff and defendant, as disclosed by the petition, is too vague, uncertain, and indefinite to be enforced by decree for the specific performance thereof,” or for damages to be awarded for a nonperformance thereof, and he properly sustained the demurrer to the petition and dismissed the case. See Baucom v. Pioneer Land Co., 148 Ga. 633 (1), 634 (2) (97 S. E. 669); Prior v. Hilton & Dodge Lumber Co., 141 Ga. 117 (2) (80 S. E. 559); Hamby v. Truitt, 14 Ga. App. 515 (3) (81 S. E. 593); Mims v. Gillis, 19 Ga. App. 53 (90 S. E. 1035), and cases cited in the opinion.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.