Young v. Adams, 122 Miss. 1

122 Miss. 1 | Miss. | 1920

Sykes, J.,

delivered the opinion of the court.

This suit was instituted in the chancery court by the appellee, W. T. Adams, as complainant. The bill in short alleges that one of the defendants (appellants), John W. McIntyre, was the owner of a certain tract of timbered lands in Alcorn and Tippah counties, and on the 27th of March, 1917, entered into a contract with J. B. and J. R. Berryman, under the terms of which contract the timber on these lands was sold by McIntyre to the Berrymans. A copy of this contract is attached to the bill and hereafter will be set out in full. The terms of the contract are briefly stated in the bill.

The bill further alleges that, after the Berrymans had finished cutting out their then location, they moved their mill upon the lands of McIntyre and proceeded to comply with this contract, and did cut a part of the timber on the lands; that on July 17th, thereafter, the Berry-mans entered into negotiations with the complainant, Adams, looking towards a purchase by Adams of the Berrymans’ mill and having Adams take up and carry out their contract with McIntyre; that the Berrymans and Adams entered into an agreement by which they sold this mill and transferred to Adams all of their rights under this contract; that under the terms of this sale Adams assumed all of the rights and obligations of the Berrymans under the contract, and was to carry it out according to its terms, and in the place and stead of the said Berrymans; that McIntyre was fully aware of the fact that these negotiations were going on, viz., that the Berrymans were selling and transferring to Adams their rights under the contract,-and that Adams was assuming all of the obligations of the Berrymans in accordance with the contract. The bill alleges that McIntyre entered into the negotiations, fully acquiesced therein and approved and assented thereto in all respects, and that the trade made between the Berrymans and Adams was made with a full and complete understanding that same was acquiesced in and in all respects approved by McIntyre; that soon after this thansfer was made Adams began preparation to cut the timber and carry out the contract with McIntyre according to its terms; that McIntyre then notified Adams, through his agent, who was on the g’round and preparing to cut the said timber, that they must not cut it, and that he had disposed of the timber to other parties.

The bill then alleges, upon information and belief, that McIntyre sold the timber to the defendants (appellants) Young and Henry; that these defendants were fully aware of the terms and conditions of the Berry-mans’ contract and of the assignment of the same to Adams with the knowledge and consent of McIntyre, and that they purchased the same with the knowledge of complainant’s contract. It is alleged that McIntyre, by his acquiescence, knowledge, consent, and approval of the assignment of the contract by the Berrymans to Adams, is estopped to deny that complainant’s contract is valid and binding. It is alleged that the claim of Young and .Henry to the timber constitues a cloud upon complainant’s title. The prayer of the bill, among other things, asks that all of the defendants be perpetually- enjoined from cutting and removing- the timber from the lands, and from in any manner interfering- with the complainant in carrying out this contract, and that the claim of Young and Henry to the timber be removed as a cloud upon the title of complainant. Other relief is asked for not necessary to be stated.

The contract was assigned in writing by the Berry-mans to Adams, as is shown and appears on the contract/which reads as follows;

“Timber Contract.

“This agreement, made and entered into this the 27th day of March, 1917, by and between John W. McIntyre, hereinafter called first party and J. B. and J. R. Berry-man, hereinafter called second party witnesseth;

“That the first party agrees to sell to the.second party all pine timber suitable to be sawed into lumber on the following described land, to wit: [Here follows description of land.]

“Said above described timber is sold on the following conditions and terms; For all said timber cut by the second party, they are to pay first party therefor at the rate of one dollar per thousand feet, lumber measure. The second party is to keep' an accurate account of all of said timber cut by them. On the 1st day of each month after they begin to cut said timber, second party is to report to first party the number of feet of said timber that they have cut and sawed during the preceding month, and on said date is to pay the first party for all said timber so cut and sawed during said preceding-month at the rate above specified. If at any time it becomes impossible for second party to. cut said timber from any cause, then said first party shall have the right to take said timber and make such disposals as he thinks best, and second party shall not have the right to object in any way. The second party is to commence to cut said timber as soon as they cut out their present location.

“[Signed] John W. McIntyre,

“Party of the First Part.

“ J. B. Berryman,

“ J. R. Berryman,

“Party of the Second Part.

“For value received, I hereby transfer the within contract to W. T, Adams, this the 17th day of July, 1919. J. B. Berryman and J. R. Berryman, by J. B. Berry-man. ’ ’

A general demurrer was filed to this bill, containing one ground, viz.:

‘ ‘ The said original bill does not state a cause of action against defendants, or any or either of them.”

This demurrer was heard and overruled by the chancellor,' and an appeal granted to this court to settle the principles of law of the case. The contentions of the appellants are thus well summarized in the brief of their counsel as follows:

“For tlfis suit to be maintainable, this instrument must, in the first place, be a contract; in the second place, it must be a,n assignable contract; and in the third place, when assigned, if assignable, its terms must be mutually binding on McIntyre, one of the original parties, and on Adams, the assignee of the other of 7the original parties.”

It is contended by. counsel for appellant that the alleged timber contract is not a contract, but a nudum pactum, by which the Berrymans were in no wise bound to do anything. Under this contract McIntyre agreed to sell to the Berrymans certain pine timber. The Berry-mans agreed to pay McIntyre for this timber at the rate of one dollar per thousand feet. The Berrymans are required to keep an account of all of the timber cut by them, and on the 1st day of each month after they began cutting the timber to account for the same and settle for the timber cut the preceding month. The contract further provides that the Berrymans were to begin cutting this timber under this contract as soon as they had cut out their then location. It is presumed that McIntyre knew where they were cutting at the time this contract was made, and the amount of timber which remained to be cut before they could begin work on the timber purchased from him. It was the duty of the Berrymans to complete the cutting of the contract upon which they were then at work within a reasonable time by the use of skill, care, and diligence, after which time they were to begin operations on the timber sold to them by McIntyre. They were then bound to begin operations within a. reasonable time, and to comply with this contract by using proper skill and diligence. The contract was not a nudum pactum, but was a mutual contract, binding alike upon both parties thereto. By its terms the timber was duly sold to the Berrymans, who were to pay for the same as cut in the manner provided for in the contract.

In its material aspects this contract is similar to the one quoted in the case of McVeay v. Rich, 102 Miss. 552, 59 So. 842. In that case McVeay sued Rich for damages for breach of contract. A demurrer was by the lower court sustained to the declaration, but on appeal to this court it was held that the declaration stated a good cause of action. In that case Eich was the owner of the land and the seller of the timber, occupying a position similar to that occupied by McIntyre in this case. The demurrer challenged the validity of the contract in that case, as it does in this. The material terms of that contract are similar to the ones in this contract. The decision in that case is therefore controlling in this. Other decisions in point are Davis v. Bellows, 99 Miss. 838, 56 So. 174; Coat Lumber Co. v. Pope, 43 So. 434.

The bill alleges that after the Berrymans had moved the mill upon the lands of Mjclntyre, and had begun to cut the timber and comply with this contract, with the full knowledge, acquiescence, and consent of McIntyre, they sold the mill to complainant, Adams, and assigned to him their rights and liabilities under this contract, to all of which McIntyre agreed. By consenting and agreeing to this, McIntyre is now estopped to claim that the contract was not assignable. It is therefore unnecessary for us to decide whether or not ordinarily the contract could be assigned, and the relative rights and liabilities of the parties under the assigned contract.

By the filing of the bill in this case, the complainant, Adams, offers to perform the contract of the Berry-mans assigned to him. The filing, of the bill is a compliance with the statute of frauds. Peevey v. Haughton, 72 Miss. 918, 17 So. 378, 18 So. 357, 48 Am. St. Rep. 592.

Affirmed and remanded, leave being given the defendants in the lower court to answer the bill within ninety days after the mandate of this court is filed in the chancery court.

Affirmed and remanded.