84 W. Va. 654 | W. Va. | 1919
The plaintiff J. L. Furrow and his brother C. S. Furrow, being joint owners of a tract of land containing 147% acres, upon which there was some standing timber, the said J. L. Furrow acting' for himself and as agent for his brother, on the 5th day of May, 1914, entered into a contract with the defendants for the sale of this timber. Shortly after the making of the contract the defendants moved their mill upon the land and began cutting and removing the timber. It appears that only a small part of the 147% acres was timbered, and that the timber which was standing thereon was divided by cleared land into two tracts. Because of the fact that the determination of the questions arising in this case involve the construction of the contract, we set the same out in haec verla. It is as follows: “THIS CONTRACT OF SALE
The parties of the second part further agree to pay for said limber the sum of $4.50 per thousand feet, the number of thousand feet to be ascertained by log measure, to be determined by Doyle’s Rule. It is further agreed that after the value of the said amount of Five Hundred and Twenty ($520.00) Dollars is obtained by the said second parties, of the said timber, at the said price of $4.50 per thousand feet, that the payments shall be made to the said first party at the said rate of $4.50 per thousand feet, as the said second parties shall ship the said timber. It is further agreed between the parties hereto that the said second parties shall be given twelve months in which to cut the said timber,.
It will be noticed that the contract provides that the timber is to be cut and removed within twelve months from its date,, and that any timber standing after that time shall revert to> the owners of the land. It appears that the defendants cut. all of the timber off of one of the segregated boundaries* but that the other small area covered with timber known as-, the Parker Hollow, lot was not cut at the time the contract, expired. Subsequent to the making of this contract O. S-. Furrow assigned all of his interest therein to the plaintiff J. L. Furrow. The defendants were not allowed to cut the timber which was standing at the expiration of the contract. This suit was then brought by J. L. Furrow to recover the price of the timber. His theory is that the contract above referred to is a deed which vested the title in the timber in the defendants at the time of its delivery, and that he was entitled to recover the purchase money, regardless of whether the timber was cut or not, and if his construction of the contract is correct this would be the case. His contention was that not only had the defendants not cut all of the timber on the land, but that they had not paid for all that, they had cut. Upon the trial it seems from one of the bills of exception that the jury found that payment had been made for all timber cut and removed, but under the instructions of the court the jury found for the plaintiff for the price of the Parker Hollow timber, basing their verdict
This paper, it is true, contains words which are ordinarily raised in a deed. It attempts to grant and convey the timber "with general warranty of title, but is this sufficient of Itself to carry the title to the timber with the delivery of '•the paper? The purpose, of course, of all construction is ■fa) arrive at the intention of the parties, and this must be done •"•from the paper itself where there is no ambiguity upon the face of it, and it can hardly be said that there is- ambiguity aipon the face of this paper. Ordinarily it is necessary to a completed contract of sale that the property intended to be sold be ascertained and designated, so that there may be no smcertainty as to its identity, its quantity, quality,.and its price. As long as anything remains to be done by the vendor, or the joint action of both parties, for the purpose of ascertaining any of these facts, the title does not pass. Of •course this does not mean that all' of these elements must ¡be absolutely certain, but they must be so determined as that -all that remains is some calculation or measurement in order to determine the agreed price, or the quantity of the article ■■«old. It has been repeatedly held that where personal property Is the subject of the sale," and it has been delivered, the 'fact that the amount thereof must be ascertained by measure-ument or weight does not prevent the title from passing at •«delivery, but those exceptions, which are referred to in the '«ease of Buskirk Brothers v. Peck, 57 W. Va. 360-368, have no : application to the case here. Taking this paper altogether ‘•the question is, what was the intention of the parties as to the passing of the title to the subject-matter of the contract? In the first place, while it is in some respects in the form of •a'.'deed, it is made by one joint owner on behalf of himself
There is some criticism by the plaintiff in error of the declaration in this case. It consists of the common counts stated' in several different forms and of a special count. Upon the theory of the plaintiff no special count was necessary. If the paper was a deed passing the title to the standing timber by its delivery, the recovery of the purchase price could be had upon the common counts.' Upon the theory, however, that this paper constitutes an executory contract for the sale of the timber, plaintiff may recover for such timber as has been cut, or so much thereof as remains unpaid upon the common counts, but to recover damages for the failure to perform the covenant to remove the timber within the time provided in the contract it would be necessary to declare specially, and if the plaintiff is advised to do so he can, upon the cause being remanded, file and amended' count presenting his claim for damages for this breach.
Criticism is also made of some rulings of the court upon the admission of evidence of estimates of the amount of timber which had been cut. and removed by the defendants. The plaintiff’s contention was that the defendant had not measured all of the timber which he cut and removed from the land, and had not accounted therefor. The logs were gone, and it was impossible to measure them. To establish his contention he introduced the testimony of some witnesses to the effect that some logs were sawed which had not been measured, and also the testimony of witnesses who estimated the timber cut from the tract of land ,by measuring the stumps, and the supposed length of the logs. He also introduced an estimate of a party who went over the timber and inspected it prior to the time it was cut and made an estimate of the amount thereof. Of course, this was not the method provided in the contract for determining the amount to
It follows from what we have said that the judgment of the circuit court will be reversed, the verdict set aside, and the ease remanded for a new trial.
Reversed, and cause remanded.