102 So. 2d 185 | Miss. | 1958
Lead Opinion
This case is before us on appeal by Wax Lumber Company, a partnership composed of Louis Wax, Mary Posey Wax and Louis Wax, Jr., complainant in the court below, from a decree of the Chancery Court of Wilkinson County sustaining a demurrer to the bill of complaint filed by the complainant against B. B. Netterville and his wife, Alma H. Netterville, defendants in the court below, and dismissing the bill of complaint.
The complainant alleged in its bill that on April 25, 1953, the complainant purchased from the defendants all hardwood trees of every kind and species 12 inches or more in diameter across the stump, and all pine trees 10 inches or more in diameter across the stump, on certain tracts of land, situated in Wilkinson County, containing approximately 205 acres, said land being fully described in the bill of complaint; and that the defendants executed and delivered to the complainant a deed of conveyance of said timber, with the right of ingress and egrees to, on, over and across the above described land for a period of four years from and after April 25, 1953, for the purpose of cutting and removing said trees, as fully shown by copy of said timber deed attached to the bill of complaint and filed as an exhibit thereto.
The complainant further alleged in its bill, that the complainant, on or about the 8th day of December, 1956, well knowing that the period of. time allowed for the cutting and removal of the trees so purchased would expire on April 25, 1957, and desiring not to cut the trees within that period of time unless it had to do so, had its agent and timber foreman, E. H. Spillman, contact the defendant B. B. Netterville to ascertain if it was agreable to the defendant to grant an extension of time for the cutting and removal of said trees for an additional term of one year; and that the said B. B. Netterville indicated to the said E. H. Spillman that for an additional sum of $162.50, or five per cent of the purchase price paid for
The complainant further alleged that it had on deposit in the bank on which the check was drawn, at all
The complainant therefore prayed that the defendants be summoned to appear and answer the bill of complaint, but not under oath, such oath being waived, and that on the final hearing the defendants be compelled to execute to the complainant an instrument granting the complainant an additional period of time of one year, or a reasonable period of time, from and after the date of the decree, within which the complainant should be authorized to enter upon the land and cut and remove the trees, without further compensation to be paid to the defendants for such extension of time, “because of the expense forced on complainant by the fraudulent actions of the defendant, B. B. Netterville, in keeping and retaining
The defendant, B. B. Netterville and his wife, Alma H. Netterville, in their general demurrer, alleged that there was no equity on the face of the hill of complaint, and that the hill stated no ground of equitable jurisdiction and no cause of action against the defendants or either of them. Several other grounds of demurrer, which were for the most part merely technical grounds, were also stated.
The appellant’s attorneys argue in support of their contention that the chancellor erred in sustaining the general demurrer, that the permission granted by Netterville to the complainant to cut the timber within one year after the expiration of the four years provided for in the timber deed, was in legal effect a license, and was good and valid until revoked; that to permit the appellees to revoke the license granted for an additional one year, under the facts alleged in the bill of complaint, would result in the perpetration of the rankest kind of fraud upon the appellant, to its great damage and to the great financial benefit of Netterville; and that the appellees are estopped by Netterville’s conduct from exercising the right to revoke the parole license so given to the appellant to cut and remove the trees within an additional period of one year.
The appellees’ attorneys invoke the Statute of Frauds; and in reply to the argument made on behalf of the appellant, the appellees’ attorneys say that the contract upon which the complainant’s suit is based is an oral contract upon which no action can be brought, according to the terms of the statute itself (Section 264(c), Code of 1942), and that no facts are alleged in the bill to take the transaction out of the operation of the statute. The appellees, attorneys also say that the bill does not show that the appellee, Alma H. Netterville, was a party to any agreement, either written or oral, concerning an extension of time for the cutting of the timber.
The bill of complaint in this case contains several imperfections. The bill was not filed in the name of the individual partners, as required by McCullar v. Mink, 121 Miss. 829, 83 So. 907. But the partners are named in the bill, and no point has been made as to their right to sue in the partnership name. The bill does not state whether the title to the land was in Netterville alone or in Netterville and his wife. It does not state whether Netterville acted for himself in the sale of the timber and in the matter of granting additional time to the complainant for the cutting of the timber, or whether he acted for himself and his wife. But we think the bill, notwithstanding its imperfections, was sufficient to withstand a general demurrer, and to require an answer.
The bill alleged that Netterville, well knowing that the check had been tendered to him for an extension of time
Eeversed and remanded.
Dissenting Opinion
dissenting:
I respectfully dissent from the controlling opinion in this case and I do so for the reason, as stated in the controlling opinion, that the bill of complaint in this case contains several imperfections.
The bill does not allege whether B. B. Netterville or whether his wife Alma H. Netterville was the owner of the land. They both joined in the original timber deed
In the case of Drane v. Wax Lumber Co., 203 Miss. 888, 35 So. 2d 63, Wax Lumber Company did exactly the same thing that it did in this case with this difference: It made the check for the extension of time payable to all of the grantors in the original timber deed, and another distinct difference between the two cases is that all of the payees in the check endorsed it and cashed it. This check had written on it, “Extension time remove timber to 12-11-44, Deerfield Plantation containing 1584 acres, more or less, Lots 1, 2, 3 and 4 Section 57 containing 177 acres, more or less, Township 5 North, Range 1 West”. This Court held in effect that the endorsing and cashing of the check, payable to all of the grantors in the original deed, with the notation quoted being on the check, was in effect an agreement to extend the time. We have no such situation in the case here presented. There is simply nothing to charge Mrs. Netterville with any sort of notice that Wax Lumber Company even wanted an extension of time.
Wax Lumber Company is an old established concern and has had many transactions involving the purchase of timber as will appear from a review of the cases in which it has been involved as appearing in the Mississippi Reports. Its officials knew that in order to con
“It is manifest therefore that the established rule should be, as it is, that in order to institute a suit in our court of chancery, the party who seeks the aid of the court and who would have relief therein — and whom we call the complainant — must as his first step exhibit therein a formal written statement — called the bill of complaint —-setting forth in an accurate and definite manner a complete narrative statement of all those material facts which are necessary to constitute his cause of action. That he shall state all those facts which are essential to his cause is an obvious requirement; for if he may omit part of them, what part may he omit, and if he may omit one part, why may he not omit two or three parts, and if two or three why may he not with equal reason omit them all? And that in stating them he shall do so in a clear and definite manner, so that neither the court nor the defendant shall have to grope about in obscurity or be required to guess at what are the facts and grounds of complainant, is an equally obvious requirement for if the facts are so stated that it cannot be told what they mean they had as well be omitted.”
A mere reading of the bill of complaint shows that the complainant in the lower court did not (in the words of