Hale & Ward v. Cook

213 F. 944, 130 C.C.A. 350, 1914 U.S. App. LEXIS 1964
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 14, 1914
DocketNo. 2403
StatusPublished

This text of 213 F. 944 (Hale & Ward v. Cook) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hale & Ward v. Cook, 213 F. 944, 130 C.C.A. 350, 1914 U.S. App. LEXIS 1964 (6th Cir. 1914).

Opinion

COCHRAN, District Judge.

The judgment which this writ of error has brought before us was for the plaintiff. The action was one of deceit, and it was tried to a jury.

On June 29, 1911, Hale & Ward conveyed to Cook “all of the .ash timber twelve inches and up at the stump on the following described land in Fulton County, Ky., viz.: The southwest quarter of section 34, T. 1, R. 6 west, and being bounded on the north and west and south by the lands of Hale & Ward and on the east by B. H. Hale’s land; also northwest quarter of section 34, the northeast, southeast and southwest of section 33 and the fractional sections south of sections 32, 33 and 34, all in T. 1, R. 6 W., containing about twelve hundred acres,. more or less, except 1% acres heretofore conveyed as right of way to C. M. & G. R. R. Co.” According to this, the land on which the timber conveyed stood consisted of the five quarter sections designated and of the fractional sections south 6f sections 32, 33, and 34. The first of the quarter sections designated had been conveyed to Hale & Ward by one Williams, and the rest of the land had been so conveyed by R. T. Tyler. Seemingly the latter .contained about 1,200 acres, more or less, so that the whole contained about 1,360 acres, more or less. The consideration for the conveyance was $8,000 cash then paid. Cook was given the right for five years after January 1, 1912, with the extension of two years longer, on the payment of $500 additional, to remove the timber. Hale & Ward, on June 26th and 27th previous, had exhibited to Cook, through his agent, the timber they were proposing to sell him.

The misrepresentation complained of was as to the quantity and quality of the ash timber conveyed. It was 'that the ash timber conveyed was the timber theretofore exhibited, and that there was of it 2,000,000 feet that was merchantable. It was not controverted that it had been represented that the timber conveyed was the timber theretofore exhibited. The position was simply that the representation was not untrue. It was controverted that it-had been rejmesented that there was on the land 2,000,000 feet of such timber that was merchantable, and possibly also that such a representation would have been untrue. The questions so raised and that as to the amount of recovery were the sole questions in the case. The verdict and judgment was for $8,-000, the exact amount which had been paid.

Of the errors assigned the only one urged in argument is a portion of the charge to the jury on the subject of the amount of recovery, which is the only part of the charge excepted to, and we will limit what we have to say thereto. The jury had been told that the measure of damages was “the difference between $8,000 paid by the plaintiff and the value of the ash timber on the land described in the contract, of the dimensions and character provided for therein, estimated proportionately ; that is to say, as $8,000 is to the value of the ash timber of that description now actually on the land described in that contract and that which may be there by January 1, 1917.” They were then charged as follows, to wit:

“And tlie court in this connection particularly charges you that, in estimating the ash timber for this purpose, you should only estimate what is now on or by January 1, 1917, may be on the sections and quarter or other frac[946]*946tional sections mentioned in the Contract. Timber upon any other land was not sold to plaintiff or conveyed to him. In this connection, and, in making your estimates, should you find for the plaintiff on the other issues, then you should remember the uncontradicted testimony that only the land north of what was called in the testimony the Henderson line was ever sectionized. In ascertaining plaintiff’s damages, should you find for him, you should not take into consideration any timber on land not embraced in the sections and quarter or other fractional sections mentioned in the contract, for only that timber was conveyed to the plaintiff, and only that timber became his property. Ash timber not on the sections and fractional sections described in the contract should not be embraced in your estimate, even should it be in Fulton county, Ky., south of the sections and fractional sections referred to.”

It is this portion of the charge which was excepted to and that has been assigned as error. We are constrained to hold that the assignment is well taken. To make this plain necessitates that we make a statement of facts in addition to those already set forth, going considerably into detail, and that we make certain ultimate deductions therefrom. In so doing we will state such facts only as are unquestionable, appearing either from the evidence or from public documents of which we take judicial notice.

Fulton county, in which the land on which the timber conveyed stands, is the most southwest of the counties of Kentucky. It binds on the Mississippi river and the state of Tennessee. The county of that state on which it binds is Obion. Within i.t is situated Re'elfoot Lake, of some notoriety. Arms thereof extend north across the state line into Fulton county. The eastern arm is known as Green timber or Grassy, and the western one as Eastage. Between the two are three smaller ones. The line between the two states, referred to in an early act of the Legislature of Kentucky as the “chartered line of Kentucky,” was the parallel 36° 3(y of north latitude, a due east and west line. Article 1, ch. 12, of Kentucky Statutes (4th or 1909 Ed.), the third or 1903 edition of which was adopted by an act of the Legislature approved February 29, 1904, gives an historical sketch of the manner in which the boundary of Kentucky was formed and finally fixed. It contains this as to the line between- the states of Kentucky and Tennessee :

“The line which divided Virginia and North Carolina was the southern boundary of the state of Kentucky. Virginia and North Carolina, prior to the creation of the states of Kentucky and Tennessee, appointed commissioners, Messrs. Walker and Henderson, to run and mark the line on the parallel of latitude 30° 30'. From a point on the top of the Cumberland Mountains, now the southeastern corner of the state of Kentucky, the commissioners, jointly, did not run the line west. One of the commissioners (Mr. Walker) run and marked the line to a point on the Tennessee river. This line, called Walker’s line, was regarded for many years as the dividing line between the states of Kentucky and Tennessee. It was ascertained, however, that the line, as run and marked by Walker, was north of latitude 36° 30'. After the Indian title to the land west of the Tennessee river was extinguished by the treaty of 1819, the Legislature of Kentucky appointed Robert Alexander and Luke Mun-sell to ascertain the true point of latitude 36° 30' on the Mississippi river and to run and mark a line east upon that parallel. This was done so far east as the Tennessee river. The two states subsequently appointed commissioners, vested with full powers, to settle and adjust all matters concerning the boundary between them. The commissioners entered into an agreement, which was subsequently ratified by the Legislatures of the two states, and the line [947]*947therein described has been ever since the southern boundary of the state of Kentucky.”

The ratification by the Legislature of Kentucky of the agreement referred to was by an act of February 11, 1820, which is incorporated in article 3 of that chapter. We are here concerned with only so much of the state line as is west of the Tennessee river.

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Bluebook (online)
213 F. 944, 130 C.C.A. 350, 1914 U.S. App. LEXIS 1964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hale-ward-v-cook-ca6-1914.