108 Ky. 550 | Ky. Ct. App. | 1900
Opinion op the COURT by
Appieming.
Appellants made a contract with appellee to get out for it 500 poplar log's, to be delivered in Big South Fork, or Little South Fork, or Big Sinking Creek, in Pulaski county, by the 1st day of September, 1893, and to be there received and measured by appellee. It was a part of the contract that when as many as 100 logs were ready appel-lee was to receive and pay for them. Appellants got out a number of logs, and called on appellee to receive them, but when it was about to do so it received notice that the logs were not the property of appellants, and declined to receive them. This suit was brought by appellants to recover damages of appellee for its failure to receive the logs. The proof shows that the logs were cut from a tract of 300 acres of land which was owned1 by five or six parties as tenants in common; that the owner of an undivided one-fourth of the land sold the poplar timber on the land to appellants without authority from the other .owners; that the owners of .another fourth of the land notified appellee not to receive the logs; and that the owner of the other half of the land, who was a nonresident of the fe’tate, "was ignorant of the cutting of the timber. If appellants had not good title to the logs, or one which would have protected appellee in receiving and using them, it had a right to decline to receive them. Their only right to the logs was by reason of their contract with one of the joint owners, who clearly had no right or authority to sell anything but his one-fourth interest, in the property. Appellants, therefore, by their contract with him, only