Jones v. Vaughan

41 S.W.2d 986 | Ark. | 1931

STATEMENT BY THE COURT.

Appellee brought this suit against appellant for damages for the value of lumber manufactured from timber alleged to have been wrongfully cut and removed from his land.

It appears from the testimony that appellee had sold the timber on certain lands in Prairie County, particularly described in the written contract of sale, to George Wright Jones to be manufactured into car stock, ties, bridge planks and lumber. The grantee was to pay $8 per thousand feet log measure for all logs cut for shipment, and $5 per thousand feet for all lumber cut until a certain amount was paid, after which the price was $4 per thousand log measure for timber remaining on the land. Any mill located on the land was not permitted to cut lumber from any other timber, nor was the timber permitted to be cut by any mill not located on the land without written consent of the grantor. The grantee was to proceed immediately with the cutting of the timber with sufficient equipment to cut all the timber and remove it from the land within two years from the date of the contract.

The contract specifically provides: "It is specifically agreed and understood that title to the timber in the tree and when cut into logs or the logs cut into lumber remain in the grantor until all obligations under this contract have been fully paid and satisfied."

It was alleged that the timber had been wrongfully cut from the lands without establishing any sawmill thereon, and removed to and manufactured at a sawmill at Jasmine in White County; that the lumber manufactured was sold to appellant, Gus Jones, and wrongfully converted to his own use without paying the plaintiff therefor.

The answer denied any information or knowledge of the timber contract between the plaintiff and George Wright Jones before the suit was filed; denied all the other allegations of the complaint, that he wrongfully converted any lumber or timber belonging to plaintiff, and that he had purchased any lumber belonging to him or failed to pay the purchase price of any lumber purchased; alleged that he is engaged in buying and selling lumber upon the market; that he purchased from George Wright Jones lumber in carload lots, loaded at Jasmine, in White County, and his books and records reflect the amount paid for the lumber to George W. Jones between the dates of June 17, 1927, and December 15, 1927, which constituted all the lumber sold and delivered him by said George Wright Jones; set out the list of lumber purchased, the number of cars thereof shipped and the amount paid therefor; alleged that he knew nothing about where the timber came from, which was manufactured into lumber, was acting in good faith in the purchase of the lumber from George Wright Jones, who was in the possession thereof; that, if the lumber was manufactured from timber cut from appellee's land, George Wright Jones was the owner thereof and had the right to sell and transfer same; alleged that he was a bona fide purchaser of the lumber in the possession of George Wright Jones for a valuable consideration without any knowledge of where the timber came from, and that appellee had any interest therein.

Interventions were filed in the suit by two mortgagees.

The amended complaint alleged that appellant purchased from George Wright Jones lumber of the value of $3,697.56, set out the car numbers and number of feet of lumber therein.

The case was tried on an agreed statement of facts, it being stipulated that, between the dates of June 17 and December 6, 1927, appellant purchased upon the open market from George Wright Jones the lumber as set out in the amendment to the complaint filed on March 10, 1921, specifying the amounts and prices and the particular time of each car of lumber, appellant paying therefor the price as alleged in the amended complaint. That appellant purchased the lumber upon the open market in good faith, without any actual knowledge that plaintiff was claiming any interest in said lumber, relying upon the fact that George Wright Jones was in possession of it and offering it for sale on the open market, and that he paid the market price therefor. The stumpage value of the timber as converted into lumber by appellant, was $5 per thousand feet. When appellant purchased the lumber from said George Wright Jones, he had no actual knowledge of where the lumber came from, nor from what timber it was cut, and knew nothing of the timber contract between appellee, Vaughan, and George W. Jones. That George W. Jones reported in writing to appellee that he was cutting timber on July 23 in section eleven of the lands described, and on August 5th that he was cutting from sections eleven and twelve of the lands described; and on October and December 5th, that he was still cutting upon said sections. The amount of the mortgages existing on the land was specified, and also that since this suit the mortgages had been foreclosed and all the property sold, etc. The timber sale contract was recorded on August 27, 1927, at 9 A.M. in the Northern District of Prairie County. That appellee was the owner of the said sections 11 and 12, described in the timber sales contract, when the timber involved herein was cut, subject to the mortgages mentioned. He only owned a one-half interest in part of the lands embraced in the contract, the Hamlin lands.

Other testimony was introduced tending to show that appellee had been informed of timber being cut on the land by the purchaser thereof and of the report made to him on the carloads of lumber shipped, etc.

He testified that he had only permitted the purchaser of the timber to remove some logs for manufacture out of the county that had already been cut without his consent; and that he had notified the purchaser not to cut any more timber except in accordance with the contract.

The court instructed the jury, refusing to give appellant's requested instruction for a directed verdict, telling them that the measure of damages to which appellant was liable was the stumpage price to be paid under the contract, $5 per thousand feet, unless you find that George Wright Jones was a wilful trespasser.

The jury returned a verdict in appellee's favor for the stumpage value of the timber from which the lumber was manufactured, and from the judgment thereon this appeal is prosecuted. (after stating the facts): Appellant insists the court erred in not directing a verdict in his favor, which he urges is the only question for determination here.

The undisputed testimony shows the sale of the timber by appellee to George Wright Jones, the terms thereof and the purchase of the lumber in the open market by appellant, who paid the market price therefor without any actual knowledge that the timber had been cut from the lands of appellee, who retained the title thereto in the contract of sale until it was fully paid for. There was some testimony tending to show that George wright Jones, from whom appellant purchased the lumber, was reporting to appellee, the vendor thereof, the timber cut and lumber manufactured from it during the time it was being removed from the land. The timber contract was duly recorded, and was such an instrument as the law requires to be recorded in order to become effective as notice, since it conveyed an interest in lands. This sale contract, however, authorized the cutting of the timber by George Wright Jones in accordance with its terms, notwithstanding it reserved the title in the timber and logs and lumber until the obligations of the contract were fully paid and satisfied. Appellant, who purchased the lumber manufactured from the timber without actual knowledge of the terms of the contract and the reservation of the title and knowing nothing about where the timber came from, could not be held to the payment to the owner of more than the stumpage price of the timber as specified in the contract, unless George Wright Jones, who cut the timber and removed it, was a wilful trespasser, as the court correctly instructed the jury.

The jury might have found from the testimony that appellee, the owner of the timber, was informed by the purchaser thereof, during the time of its removal from the land, that it was being removed and manufactured; and under such circumstances that appellee was not entitled to recover the enhanced value of the timber when manufactured into lumber, even though it had been wrongfully done by a wilful trespasser. In other conditional sales of personalty, where the title is retained by the vendor, this court has frequently held that the buyer may dispose of his interest in the property purchased, and in doing so does not affect adversely the vendor's right to the property so long as the purchase price therefor remains unpaid.

Since the purchaser of the timber could remove same and legally dispose of his interest therein, the vendor's right to payment of the purchase money therefor, under the retention of title contract, not being adversely affected by such sale, the purchaser from the conditional vendee would only be bound to pay the balance of the purchase money due in order to protect his title therein, and could not be held liable for more than the purchase money, for the payment of which the title was retained.

The jury had the right to determine the conflicts in the testimony, and its verdict is supported by substantial testimony.

We find no error in the record, and the judgment is affirmed.