Felder v. Oldham

35 S.E.2d 497 | Ga. | 1945

Lead Opinion

1. Count one of the petition fails to set out an act of God, an act of the seller, or an unforeseen casualty or misfortune, which would authorize an extension of time for the removal of timber under the terms of the contract that is the basis of the suit.

2. The tender of a sum of money for the purpose of extending the period of time for the removal of timber under a contract was, under the facts alleged in this case, properly made to the administrators.

(a) Whether or not the purchaser of timber exercised due diligence in his efforts to remove timber from land within a required period, under the facts here alleged, is a question of fact to be determined by a jury.

3. There is no misjoinder of parties in this case.

4. The special demurrers to that portion of the petition detailing certain alleged knowledge and conduct on the part of the seller of the timber were properly sustained.

Nos. 15256, 15257. OCTOBER 5, 1945. George F. Oldham filed suit against H. A. Felder and Mrs. Annalene Nelson, as administrators of the estate of I. D. Felder, and against all the heirs at law of I. D. Felder. The petition was in two counts. Count one alleged in substance that on September 16, 1940, the plaintiff entered into a contract with I. D. Felder for the purchase of timber located on a described tract of land. The timber was to be paid for by the payment of $5000 cash, and the balance of $15,000 in monthly installments at the rate of $1 per thousand board feet for the timber cut each month. The entire purchase-price has been paid. The contract for the purchase of the timber provided: "It is expressly understood and agreed by and between the parties hereto that the said party of the second part, his heirs and assigns, is to have the free use and enjoyment of the timber on the above-described premises, for the purposes aforesaid, for a term of four (4) years from and after the 16th day of September, 1940; however, the party of the second part shall not have the right to cut the timber suitable for sawmill purposes off of this land more than once during the term of this lease. It is further understood and agreed that the party of the second part is to have the right of free and uninterrupted use of the land above described for the full term of this lease, for the purpose of ingress and egress, to cut and remove timber and lumber, to put up a sawmill or sawmills, and to place upon said lands other machinery or fixtures, and to do all other acts and things necessary to the full enjoyment and use of cutting, hauling, marketing, and disposing of the timber on said land above described. . . If the party of the second part, at the expiration of the term of this lease, shall have not been able to cut and remove the timber and lumber from the above-described premises, then, in that event, he shall have the right to renew this lease from year to year for the additional sum of $250; however, it is understood and agreed that the right to renew this lease shall not be given over any part of said timber to be cut more than once during the term of this lease or any renewal thereof." Count one further alleged that: "I. D. Felder Sr., was fully informed as to the business conditions of this plaintiff and also as to the timber and sawmill business in south Georgia and Alabama generally," knew that the plaintiff was a man of limited means, and would be unable to pay the deferred payments under the lease unless he could do so by cutting the timber in controversy and other timber simultaneously; that Felder knew the plaintiff was required to cut his lumber in accordance with specifications as to length and size, which specifications had been previously furnished to the plaintiff by his customers, and that the plaintiff, in a large percentage of cases, could not cut the lumber from the land on which the timber here involved was located for the reason that the specifications called for timber of larger dimensions, and of different quality, than that growing on the land here involved; that Felder, with full knowledge of these facts, "did, on the 28th day of October, 1940, lend to this plaintiff an additional sum of $7000, at a time when said I. D. Felder Sr., knew said additional sum was to be used by this plaintiff to pay the purchase-money of a large body of timber in southeast Alabama known as the Wilson Place, to be cut by the plaintiff, and said Felder took, as security for said loan, a conveyance of the paper by which said Alabama timber was purchased, knowing the fact that said timber had to be cut by the plaintiff in three years, and that the cutting thereof should proceed in conjunction with the cutting of said timber on said Felder lands and other timbers. Plaintiff has carried out said contract with reference to said Alabama lands, and has repaid the entire amount of said $7000 loan and interest thereon." Count one also alleged that, since making the contract, and on or about December 7, 1941, the United States has become involved in war with Germany and Japan, which has resulted in a labor shortage, making it impossible to secure sufficient labor with which to cut and remove all the timber within the four-year period set out in the contract, about $5000 worth of timber remaining uncut; that the plaintiff has used due diligence in cutting the timber; that, by reason of the facts set out in the petition, the plaintiff is entitled to have the period of time in which he is permitted to cut the timber extended for a reasonable length of time; that the defendants deny that the plaintiff has this right and threaten to exclude him from the property at the end of the four-year period. The prayers of count one of the petition are: "1. That said defendants, and each of them, and their agents, be immediately restrained and enjoined from carrying out their announced purposes and threats, and restrained and enjoined from excluding plaintiff from said lands, and from claiming that plaintiff will have no right to cut said timber, after September 16, 1944, and plaintiff prays that after notice, such injunction be made permanent. 2. That, regardless of the foregoing, a decree be entered in this case, to the effect that plaintiff has been prevented by acts of God and other forces over which plaintiff had no control, from completing the cutting of said timber mentioned in `Exhibit A,' within the four-year term mentioned in `Exhibit A,' and that thereby, in order to avoid the harsh forfeiture, plaintiff shall have the right for a reasonable time after said September 16, 1944, to complete the cutting of his timber on said lands, which timber has already been paid for in full by this plaintiff."

Count two of the petition sets out the same facts as count one, with the following additional allegations: "Out of an abundance of caution, this plaintiff has also elected to exercise his right of renewal of said lease, conferred upon him by the clause therein which provides that, if he has not been able to cut and remove said timber and lumber from said premises at the expiration of said term, he `shall have the right to renew this lease from year to year for the additional sum of $250,' provided he shall not be entitled to renew it so as to cut over lands which have heretofore been cut over by him, and plaintiff has no desire to do that. Pursuant to his said election, plaintiff has, on September 12, 1944, made a legal tender of said $250 to said administrators, to effectuate said renewal for another year, but each of said administrators declined to accept the same, and refused to recognize plaintiff's right to have such renewal. Plaintiff has continuously offered said $250 since that time. Out of said extra precaution, said plaintiff here and now tenders said $250 in court, and deposits the same with the clerk of this court, to be continuously tendered to said administrators, in order to effectuate such renewal of said lease for another year from and after September 16, 1944." Count two prays for an injunction in the same language as count one, and prays "that the court order said $250 deposited in the registry of the court to be held as a legal and continuous tender of the same by the plaintiff to said defendants, and that on the final hearing said defendants be required by the decree of this court to accept said tender and to specifically perform the agreement mentioned in said `Exhibit A,' by which said lease shall be renewed for another year."

The defendant administrators and the heirs at law filed identical demurrers, demurring generally to both counts of the petition; likewise demurring specially to certain paragraphs of both counts. The trial judge overruled the general demurrers to both counts, sustained certain special demurrers, and overruled other special demurrers.

The plaintiffs in error except to the judgment overruling the general demurrers as to both counts, and to the judgment overruling certain special demurrers. The defendant in error by cross-bill excepts to the judgment in so far as it sustained certain special demurrers to both counts of the petition. 1. We consider first the ruling on the general demurrer to count one of the petition. This count in effect seeks an extension of time, for a reasonable length of time, beyond the four-year limitation contained in the contract, in which to remove the timber from the land. The reasons alleged as a basis for this extension are that, because of war conditions, and the consequent shortage of labor, coupled with the alleged acts and conduct of the owner of the land, the purchaser of the timber, through no fault of his, was unable to remove the timber within the four-year period. Does the fact that this country, subsequently to the execution of the contract, became engaged in war, which caused a labor shortage, entitle the purchaser of the timber to the relief sought? The defendants in error in their brief concede that this question has not been decided by the Georgia courts. 34 Am. Jur. 515, § 36, is cited. This text authority simply states that an extension of time for removal sometimes results by operation of law in case the removal is interfered with by an act of God, act of the seller, or some unforeseen casualty or misfortune over which the purchaser had no control. If war can be considered an act of God, this contention is correct. See the Code, § 20-1102. We deem it sufficient to say that the terrible war in which this country has been engaged can in no sense be said to be an act of God. It was not the act of the seller of this timber. Neither do we think, in the light of human history, that it can be said that war is an unforeseen casualty; on the contrary, war is something which may be anticipated, as unpleasant as it is to do so, and against which parties can protect themselves by contract. 38 C. J. 174, §§ 55, 56, is cited. What has been said above applies with equal force to this text authority. Our attention is called to Taylor Brown Timber Co. v. Wolf Creek Coal Co., 32 Ky. Law Rep. 1015 (107 S.W. 733), Small v. Robarge, 132 Mich. 356 (93 N.W. 874), Ford Lumber Mfg. Co. v. Cress, 132 Ky. 317 (116 S.W. 710), and Fish v. Murrell, 219 Ky. 153 (292 S.W. 1096). We find nothing in either of those cases that alters the rule laid down in the text authority cited; that is, in order to obtain the relief here sought, it must be alleged that the purchaser of the timber was prevented from removing the timber, within the time specified in the contract, by an act of God, the act of the seller, or unforeseen casualty or misfortune. The case of United States v. W. T. Mason Lumber Co., 172 Fed. 714, 720, is relied upon by the defendant in error. That case is entirely different on its facts from the instant case. There the right to remove logs already cut was involved, and there the seller itself caused the delay in cutting the timber; not so in the instant case.

We conclude that count one of the petition fails to set out a cause of action, and the court erred in not sustaining the general demurrer to this count. Since we have held that this count should have been dismissed on general demurrer, it becomes unnecessary to rule on the special demurrers to this count.

2. Count two of the petition was demurred to generally on the grounds: 1. The petition sets forth no cause of action. 2. It does not allege that any payment or tender of payment has been made to the heirs at law. 3. The right to renewal upon payment of $250 attempts to create a perpetuity. 4. The allegations show no legally sufficient reason for a failure to remove the timber.

The ruling on the general demurrer to count one would control the ruling as to the general demurrer to count two, except for the additional allegations quoted in the statement of facts preceding this opinion. We are called upon to determine what rights as to renewal the purchaser of the timber obtained by the inclusion in the contract of sale of the following provisions: "If the party of the second part, at the expiration of the term of this lease, shall have not been able to cut and remove the timber and lumber from the above-described premises, then in that event he shall have the right to renew this lease from year to year for the additional sum of $250." We have had considerable difficulty in reaching the conclusion that either party to this contract could derive any right or benefit from a clause so general and indefinite in its terms. While the provision of the lease above quoted uses the word "renew," we think that the clause, construed as a whole, gave to the purchaser, not the right to "renew," but the right to "extend" the time of the contract for twelve months upon the payment of $250.

"As a general rule, in construing provisions relating to renewals, where there is any uncertainty, the tenant is favored, and not the landlord, because the latter, having the power of stipulating in his own favor, has neglected to do so, and also upon the principle that every man's grant is to be taken most strongly against himself." 16 R. C. L. 884, § 388. See also 32 Am. Jur. 809, § 962.

This court has held, where timber is sold without any stipulation as to the time in which it is to be cut and removed, that the purchaser has a reasonable time for such purpose.Lufburrow v. Everett, 113 Ga. 1054 (39 S.E. 436). Applying the above rules of law, it appears that the parties could contract for an extension of time for a period of twelve months upon the payment of $250.

Whether or not the purchaser used reasonable diligence in his efforts to cut and remove the timber during the four-year period would be a question of fact to be determined by a jury.

The argument is made that the general demurrer should have been sustained for the reason that the $250 was tendered to the administrators and not to the heirs at law. There is no merit in this contention, for the reason that the Code, § 113-1525, provides: "The administrator, as far as possible, shall fulfill the executory and comply with the executed contracts of the decedent, and he shall have a corresponding right to demand the same of the parties contracted with."

Ground three of the demurrer was expressly abandoned.

3. The plaintiff in error, by special demurrer, raised the question that there was a misjoinder of parties, contending that the suit could not proceed against both the administrators and the heirs at law. The trial court overruled this special demurrer. We have held in this case that the tender of $250 for the purpose of extending the contract was properly made to the administrators. It of course follows that the administrators were proper parties. Were the heirs at law proper parties? As early as 1848, this court said: "All persons interested in the decree to be rendered should be made parties to the bill, that the court may do complete justice, and that future litigation may be prevented." Wells v. Strange, 5 Ga. 22. This ruling has been consistently followed by this court. See Gilmore v.Johnston, 14 Ga. 683; Peoples Bank of Calhoun v. Harry L.Winter Inc., 161 Ga. 898 (132 S.E. 422); Hermann v.Mobley, 172 Ga. 380 (158 S.E. 38); Gormley v. Wilson,176 Ga. 711 (168 S.E. 568); Huey v. National Bank ofFitzgerald, 177 Ga. 64 (169 S.E. 491); Goodroe v. C. L. C.Thomas Warehouse, 185 Ga. 399 (195 S.E. 199); Benton v.Turk, 188 Ga. 710 (4 S.E.2d 580); Mims v. Lifsey,192 Ga. 366 (15 S.E.2d 440). Certainly the heirs at law in the instant case are "persons interested in the decree to be rendered." The trial court properly overruled this special demurrer.

4. The petition alleged in several paragraphs what were contended to be simply circumstances at the time the contract was executed and during the period of its operation, the substance of these allegations being that Felder was aware of Oldham's limited financial means; that the timber on the tract in question could not be cut, and the balance of $15,000 paid, unless Oldham cut other timber of different dimensions and quality, at the same time he cut timber under the contract, to meet specifications furnished by his customers; that Felder obtained, by virtue of this lease, a greater price for the timber than he could otherwise have obtained; that after the contract in question was executed, Felder made a loan of $7000 to Oldham, knowing that the money was to be used to purchase a large tract of timber in Alabama to be cut simultaneously with the timber here in question; that the cutting of the Alabama timber has been completed, and the $7000 repaid. These allegations were stricken on special demurrer, and the defendant in error by cross-bill excepted to this ruling.

These allegations were properly stricken on special demurrer. We have here for consideration a question of proper pleadings, and not a question of the admissibility of evidence.

Judgment on the main bill reversed in part and affirmed inpart. Judgment affirmed on the cross-bill. All the Justicesconcur, except.

Bell, C. J., who concurs specially as to the rulings on the main bill of exceptions, and dissents from the ruling on the cross-bill.

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Dissenting Opinion

I concur in the conclusion reached in division 1, to the effect that count one of the petition did not state a cause of action; and while my views may not be actually different from those of my associates, there are certain reservations that I would like to make in express terms with respect to my position.

The Code, § 20-1102, declares: "If such a performance is impossible, and becomes so by act of God, such impossibility is itself a defense equivalent to performance; but if, by proper prudence, such impossibility might have been avoided by the promisor, it ceases to be an excuse for nonperformance." This principle seems to be defensive only, that is, one excusing nonperformance, and might or might not operate affirmatively so as to extend the time for exercising a right. The plaintiff here is seeking the latter application.

The opinion as delivered holds, and correctly so, as I think, that war is neither an act of God, nor a casualty or misfortune that could not be anticipated. This being true, the case necessarily falls, and it is therefore unnecessary to determine whether, if a lessee under such a lease should be actually prevented by an act of God, or by some unforeseen casualty or misfortune, from removing the timber within the period stipulated, the time for removal would be extended by operation of law.

Accordingly, I expressly reserve opinion on the questions indicated.

I concur without qualification in the rulings contained in divisions 2 and 3, relating to count 2.

I dissent from the ruling in division 4, relating to the same count. I think that the allegations were relevant on the question whether the plaintiff had used the proper diligence to remove the timber within the original term, and that they should not have been stricken.