94 So. 232 | Miss. | 1922
delivered the opinion of the court.
The appellant, E. C. RoAvan, entered into a contract with Mrs. Thomas E. Murray for the sale of certain timber growing on lands therein described, said contract reading as follows:
“Near Rosetta, Miss., Dec. 12, 1919.
“Mrs. Murray sells and E. C. Bowan buys all the merchantable timber except beech on the following lands. Beech will be used if party of second part can secure a practical offer for it. Timbers taken from above twelve inches diameter at the stump and up. Lands described as:
“The Southwest quarter of Southeast quarter, less ten acres, South half of Southwest quarter of Southwest quarter and South part of Southeast quarter of Southwest quarter, section 26, township 4, range 1 East. And East half of Northwest quarter and East quarter of Southwest quarter of Northwest quarter and Northwest quarter of Northeast quarter, section 35, township 4, range 1 East. And any other timber on land adjoining that belongs to Mrs. Murray, about two hundred and thirty-five acres in all.
“Party of second part agrees to begin erection of a mill to cut this timber in not less than sixty days from date. He to have the use of any land except field, to erect mill and other buildings.. All buildings to remain the property of Mrs. Murray. All necessary wagonroads and right of ways to be given for logs and lumber hauling. Price of timber to be two dollars and fifty cents per thousand feet scaled at mill. E. C. Bowan to pay Bobert Murray fifty dollars per month to scale this timber after mill starts.
“Ten dollars cash paid and received on this contract, not counted on contract.
“[Signed] Mrs. I. Murray.
“E. C. Bowan.
“W. L. Bowan.
“Witness: B. L. Murray.
“State of Mississippi, Amite County.
“Personally appeared before me, Joe Upton, a notary public, in and for district No. 3 of said county, and state, W. L. Bowan, one of the subscribing witnesses to the attached and foregoing instrument, who being first duly
“[Signed] W. L. Rowan.
“Sworn to and subscribed before me the 7th day of April, A. D. 1920.
“[Signed] Joe Upton, Notary-Public [Seal.]”
After the execution of this contract, the Foster Creek Lumber & Manufacturing Company secured a contract from Mrs. Murray and cut the timber growing- upon said lands and removed said timber to its mill., The other appellees were employees of the lumber company engaged in the cutting and removal of said timber. Suit was brought for the statutory penalties aggregating sixteen thousand and fifty dollars for the alleged cutting of one thousand and fifty pine trees and twenty beech trees. The general issue was filed to the declaration and special notice given that on the trial of the cause defendants intend to and will prove that at the time of the alleged trespass Foster Creek Lumber & Manufacturing Company had acquired title to all the trees and timber involved in this case with full rights and privileges for the removal thereof from the lands described in the declaration.
The plaintiff proved the execution of the contract, proved notice to the defendant Foster Creek Lumber & Manufacturing Company, prior to the acquirement of the Foster Creek Lumber & Manufacturing Company’s contract from Mrs. Murray, and proved that he had entered upon the premises involved and had begun the erection of a sawmill plant and had cut some of the timber down around and near the mill, and that the defendants cut and removed one thousand and sixty-nine trees, and that the lumber company had removed the trees that the plaintiff had cut. At the conclusion of the plaintiff’s evidence a motion was made for a peremptory instruction for the defendants, which motion was sustained by the court and a judgment
There are many assignments of error made to the action of the court below, and the controversy in the court below seemed to have largely revolved around the question as to whether the contract of the plaintiff was sufficient to convey the timber or jvhether it was a mere option which was revoked by a subsequent sale to the lumber company.
In our views of the case the plaintiff has failed to make out his case independent of this consideration, and it is not necessary for us to determine many questions presented because the plaintiff failed in his proof in making out the case brought even if his contract should be construed to be a deed. The testimony upon the number of trees cut is specific, but it will be noted from a reading of the contract that the plaintiff’s right was to trees measuring twelve inches in diameter and over at the stump, and there is nothing in the proof to show how many of the trees of that character were cut. It was necessary for the plaintiff to make this proof because the trees under that dimension were trees as to which plaintiff had no title. In cases of this kind the plaintiff must make out his case by proving every fact essential to recovery. It was incumbent upon the plaintiff to prove the number of trees twelve inches and over at the stump, as well as the kind of trees so cut.
It follows from what we have said that the judgment of the court below must be affirmed.
Affirmed.
