| Ky. Ct. App. | Mar 18, 1919
Opinion of the Court by
Affirming in part and reversing in part on the original appeal and affirming on the cross-appeal.
On December 17, 1910, Henry Broughton, by written contract, sold to B. Johnson & Son certain timber at tho price of $3.50 per thousand feet, mill measure.
Of the purc^ase monej’-, $500.00 was paid in cash, and Johnson & Son were given five years within which to remove the timber. On December 18, 1911, the parties
“Witnesseth: That for and in consideration of party of second part making a further advance to party of first part of the sum of ($500.00) five hundred dollars, party of the first part does hereby agree to accept three dollars ($3.00) per thousand feet mill measure, instead of three dollars and fifty cents ($3.50) per thousand feet, as mentioned in contract dated December 17th, 1910, and recorded in Bell county instrument book No. 1, page 34, December 24th, 1910.”
In settling with Broughton, Johnson & Son deducted xhe $500.00 paid in advance from the purchase price of the timber.
On December 17, 1910, Oliver Smith sold to Henry Broughton certain timber at the price of $2.50 per thousand feet, and Broughton was given two years within which to remove the timber. This timber was sold to Johnson & Son at the price of $3.00 per thousand feet, but was not removed within two years. Thereafter Johnson & Son purchased the timber from Smith himself.
This suit was brought by Broughton against Johnson & Son to recover as follows: (1) The $500.00 paid under the supplemental contract of December 18, 1911, on the ground that it was paid solely for a reduction in the price of the timber and should not have been credited on the purchase price; (2) the sum of $420.00, the difference between the price that he paid for the Smith timber and the price which defendants agreed to pay; (3) the sum of $600.00 damages to the timber, due to sap rot caused by defendants’ permitting the timber to lie on-the ground for several months before it was manufactured.
On final hearing, plaintiff’s claim under item one was rejected, but he was given judgment for $400.00 under item two, and for $225.00 under item three. From this judgment defendants appeal, and plaintiff prosecutes a cross-appeal.
It is further insisted by the defendants that the chancellor erred in adjudging plaintiff any recovery under item 2. Plaintiff pleaded in substance that subsequent to the execution of the contract of December 17, 1910, there was a verbal agreement entered into between the plaintiff and defendants’ agent, by which it was agreed that plaintiff should buy, and he did buy, a boundary
The defendants answered and denied the making of the aforesaid agreement. Plaintiff testified that O. L. Taggart was the agent of defendants with authority to purchase timber on their behalf. Taggart requested plaintiff to buy the 01 Smith timber and drew the contract by which Smith sold the timber to plaintiff. This contract gave plaintiff two years within which to remove the timber. The defendants, proceeded immediately to cut the timber, but none of it was removed within the two years, but plaintiff frequently requested the defendants to remove it within that time. While testifying in rebuttal, plaintiff introduced a letter from Taggart, in which Taggart said:
“In accordance with conversation of yesterday, we will agree to go ahead and work out the timber on the 01 Smith and Britt Sluslier tracts, under the same terms, price and conditions as specified in contract covering your timber, that is, the tract we bought from you on the 17th inst.”
It further appears that the two years in which the OI Smith timber was to be removed expired before its. removal, and Smith objected to its removal. Thereupon, defendants bought the timber from 01 Smith and subsequently removed it. It is the contention of plaintiff that Johnson & Son owed him 50c for each one thousand feet of lumber which they had the right to remove and did not remove. On the other hand, Johnson & Son contend that the above letter was the only binding contract into which they entered, and since it shows that the purchase of the timber was made on the same terms and conditions as those specified in the contract for the sale
This contract was in parol. He did purchase tho timber but never conveyed it to the defendants or made a written contract to convey it. Plaintiff, being the vendor, was the party to be charged. Under these circumstances, the oral contract with the defendants was not enforcible. Of course, if defendants had cut and removed the timber under the contract, they would have been liable for the purchase price. However, they did not cut and remove the timber under that contract, but under a subsequent contract made with Smith. Under these circumstances, they incurred no liability to. plaintiff, and it was error to adjudge any recovery against them.
(2) On the question of damages due to sap rot, defendants contend that the evidence of those who knew-shows that the damages allowed were far in excess of those actually sustained, while plaintiff asks that the allowance be increased. In reply to this contention it is sufficient to say that the case is one calling for tho
(3) Plaintiff’s chief objection^on the cross-appeal is that the chancellor erred in denying him any recovery of the $500.00 paid under the supplemental contract. On this question, he claims that defendants were losing money on the original contract, and paid him the $500.00 solely as a consideration for the reduction of the contract price. It appears, however, that- on December 14, 1911, plaintiff wrote the defendants as follows:
“I am writing you in regard to the timber sold your agent about a year or more ago and they were to go to work as soon as practicable and push same to completion, and it seems to me they ain’t doing any good, and I need some money as I am in the goods business and I would like for you to press them up. ' I also offered Mr. May 50c. off of each one thousand feet and ain’t heard from you — I know I was losing money, but I need some very bad; if this don’t suit you I would like for you to send me about $500.00 and take it out of the timber as I will have 4 or 5 thousand dollars worth.”
On December 16, 1911, Johnson & Son sent to plaintiff the following reply:
“We have your favor of Dec. 14th and have noted contents. In reply beg to say that you have misconstrued part of our contract. You will note by referring to same that we have five years in which to remove the timber. It also provides that you shall be paid by mill measure. Under the circumstances, however, we are willing to assist you in any way we can consistently and we are, therefore, sending to our Mr. May a supplementary contract, with instructions that when you sign same he can pay you $500.00 more on this timber.
“We trust this will be entirely satisfactory and relieve you financially.”
Thereupon, the parties executed the supplemental contract of December 18, 1911, providing, “that for and in consideration of party of second part making a further advance to party of the first part of the sum of $500.00 party of first part does hereby agree to accept $3.00 per Hiousand feet mill measure instead of $3.50 per thou
On tile cross-appeal the judgment is affirmed. On the original appeal, that portion of the judgment awarding damages for. sap rot in the sum of $225.00 is affirmed, and that portion of the judgment awarding plaintiff 8400.00 as commissions for the purchase of the 01 Smith timber is reversed, and cause remanded Avith directions to enter judgment in conformity with this opinion.