43 S.E.2d 196 | Ga. Ct. App. | 1947
1. (a) Under the allegations of the petition, the court erred in sustaining the general demurrer and ground 1 of the special demurrer, which attacked the petition for the reasons that the description of the timber to be cut was insufficient, and the time in which it was to be cut was not specific.
(b) Grounds 3 and 4 of the demurrer are without merit.
Paragraph 5 reads: "Petitioner shows that after said defendant through the said Joe Mitchell refused to continue logging and sawing said timber for $22 per thousand that he made investigations and inquiry and got prices from other sawmillers and that $28 per thousand was the best and lowest price that petitioner could obtain for logging and sawing said timber."
The contract, omitting the formal parts, reads: "This agreement made and entered into this the 5th day of April, 1946, between James O. Smith and Clifford H. Cowart:
"Whereas, the said James O. Smith and Clifford H. Cowart are joint owners of a certain sawmill and motor, the said James O. Smith has this day traded all right, title, and interest in and to the said sawmill and motor, for one 1 1/2 ton G. M. C. Truck, and one mule, black horse mule, weighing about 1150 pounds, age about ten years.
"As a further consideration of this contract and agreement, the said Clifford H. Cowart, agrees that as soon as the present boundary of timber is sawed and converted into lumber, where said sawmill is now located on the property of Claiman Chester, that the said Clifford H. Cowart will move said sawmill to the home place and lands of James O. Smith, and cut, log and saw a boundary of timber for the said James O. Smith for which the said Clifford H. Cowart is to receive $22 per thousand feet for cutting, logging, sawing and converting said timber into lumber, throwed over the skid poles, for which the said James O. Smith agrees to pay and settle for timber converted into lumber on the 1st and 15th of each month until all of said timber is cut and converted into lumber as heretofore agreed. *271
"This agreement made in duplicate, each copy will be considered, as an original, and signed by both of the parties hereto. Witnesseth under their hands and seals. Signed: James O. Smith. Clifford H. Cowart."
The demurrer, omitting the formal parts, reads: "Said petition fails to set forth a cause of action and should be dismissed.
"2. Defendant demurs specially to paragraph three of the petition of the plaintiff in said matter and moves the court to dismiss the same upon the ground that said paragraph three of the exhibit attached and made a part thereof does not describe the property on which said sawmill was to be moved, and that the description in said paragraph and exhibit is insufficient in law and is too indefinite upon which to base a recovery, or to put this defendant on notice of the lands that he would be expected to cut the timber.
"3. Defendant demurs specially to paragraph four of the plaintiff's petition and moves the court to dismiss the same upon the ground that said paragraph has reference to certain transactions that he had with one Joe Mitchell, and alleges no facts or circumstances upon which to base a recovery against this defendant, and further fails to allege any facts or that this defendant ever refused to comply with any purported contract.
"4. Defendant demurs specially to paragraph five of the petition of plaintiff and moves the court to dismiss same upon the ground that said paragraph fails to show any fact or circumstance that would indicate that this defendant had failed to comply with any agreement or contract that he had with the plaintiff, or that he personally had any opportunity to comply with an agreement with the plaintiff, or that any demand or request was made upon this defendant."
1. (a) In our opinion the contract between the parties in this case was one for services. It did not involve the title to timber, nor the title to land. It will be further observed from the allegations of the petition that after one of the partners, the plaintiff, sold his interest in the sawmill to the other partner, the defendant, it was agreed between them that when the timber had been cut on the Chester place, where the sawmill was then located, the sawmill was to be moved by the defendant "to the *272
home place and lands of James O. Smith, and cut, log and saw a boundary of timber for the said James O. Smith, for which the said Clifford H. Cowart is to receive $22 per thousand feet for cutting, logging, and sawing and converting said timber into lumber throwed over the skid poles. . ." The petition alleges that thereafter the defendant sold the sawmill to one Mitchell, whom the defendant claimed he had procured to perform the contract with the plaintiff. After the milling was completed on the Chester place, the sawmill was caused to be moved by the defendant to the home place and lands of the plaintiff. 94,000 feet of the timber was cut at the contract price of $22 per thousand on behalf of the defendant, and paid for by the plaintiff. Thereafter, the petition alleges that the defendant refused to cut the remainder of the "boundary of timber" on "the home place and lands of James O. Smith." We think this suit is for damages for the breach of a simple contract and does not involve the sale of timber which would involve the title. And we are further of the opinion that the description, in view of all the allegations of the petition and the terms of the contract between the parties, is sufficient to set out a cause of action. It would seem that there was no question as to the definiteness of the description when the defendant procured the sawmill to be moved upon the lands of the plaintiff and cut 94,000 feet of timber therefrom. And further it appears that after the price for cutting the timber was raised from $22 per thousand to $28 per thousand, there was no difficulty because of indefiniteness of description to locate and cut the remainder of 174,000 feet of the timber. This court held in the case of McIntosh Land Timber Company v. Middleton,
It is contended here that the contract involved is unenforcible for the further reason that no time is specified within which the timber of the plaintiff is to be cut. In such a situation, the law would imply a reasonable time within which to perform the *273
contract. Ray v. Hutchinson,
Counsel for the defendant in error cite a number of cases to sustain his contention that the court correctly dismissed the petition in the instant case on demurrer. Among them are:Kimbrell v. Thomas,
(b) We think a comparison of the other grounds of the demurrer with the allegations of the petition itself will reveal them to be without merit.
The court erred in sustaining the demurrers to the petition and in dismissing it.
Judgment reversed. MacIntyre, P. J., and Townsend, J.,concur.