Turner v. Planters' Lumber Co.

46 So. 399, 92 Miss. 767

• Court: Mississippi Supreme Court
• Decided: March 15, 1908
• Status: Published

Opinion

Whiteield, O. J.,

delivered the opinion of the court.

The verbal contract in this case between Turner, appellant, and the Planters’ Lumber Company, appellee, was not a contract for the purchase of standing timber, but manifestly, a contract for the sale of logs — personal property. The amended declaration avers that Turner made a contract with Thompson, whereby Thompson sold the plaintiff, for a cash consideration duly paid, all the standing timber on a certain tract of land,, containing about two hundred áud fifty acres; said timber to be removed from the land by the 1st of January, 1905’. The amended declaration then proceeds to aver the contract in question between Turner and the Planters’ Lumber Company. It avers, in the first place, that the appellee had full knowledge of all the terms and provisions of the contract between Turner and Thompson, and with that full knowledge, thereafter, on the 1st day of September, 1904, the appellee made a verbal contract with appellant, whereby the appellee agreed to purchase from the appellant all the logs on the Thompson’s tract of land, “to be cut into logs and delivered by plaintiff [Turner] at the siding on the Southern Railway at or near Dunleith, Miss., in said county, to be loaded either by plaintiff [Turner] ,on the cars at Dunleith, or by defendant at plaintiff’s cost. . . . Said logs to be transported over said road at defendant’s cost to its mill and sawed into lumber, for which defendant agreed to pay plaintiff at the rates following, to-wit: $16 per thousand for No. 1 white oak; $11 per thousand for No. 2 white oak; $9 per thousand for No. 2 common white oak; $12 per thousand for No. 1 red oak; $9 per thousand for No. 2 red oak; $7 per thousand for No. 2 common red oak; $16 per thousand for No. 1 ash; $11 per thousand for No. 2 ash; $9 per thousand for common ash; $6.50 per thousand for No. 1 gum; $5 per thousand for No. 2 gum.”

This is a contract between the appellant and the appellee, not about timber standing, but about logs cut and delivered at a particular point, Dunleith, to be transported to the appellee’s mill, for which logs various prices are to be paid, according to the quality of the logs as set out in the quotation just made from the amended declaration. Most obviously, this is nothing but a contract about personal property — logs—after they are cut and delivered at the place named, and this is the manifest construction put upon the contract by the parties to the contract, which is quite important. Ganong v. Brown, 88 Miss., 53, 40 South., 556, 117 Am. St. Rep., 731. This contract required the timber to be converted into logs, hauled to Dunleith, and shipped to the vendee. The freight rate was stipulated for in the contract, and the price of the logs, according to the different kinds of trees, also graduated by a schedule. The Supreme Court of Tennessee announced this doctrine in the case of N. Y. & E. T. Iron Co. v. Greene County, 58 Tenn., (11 Heisk.), 434, and Tennessee holds, as this state does, that a contract for the sale of standing timber must be in writing. See 28 Am. & Eng. Ency. of Law (2d ed.), 540, 541; Knox v. Haralson, 2 Tenn. Ch., 232. The contract construed in the case of N. Y. & E. T. Iron Co. v. Greene County, was as follows: “The said Kelley hereby sells to the party of the second part, to-wit, the said Talmadge, all the timber on the land of the said Kelley, except the choice rail trees and large pine trees suitable -for making timber, at tbe rate of ten cents per cord, to be paid for as fast as used.” Tbe last clause of tbis contract was also Feld by tbe court to sbow'tbat tbe sale was not of standing trees, but of wood after it bad been cut into cordwood. That case is not nearly so strong on its facts as tbis case to show a sale of personalty. Tbe correspondence between tbe parties shows, plainly, •that they understood it to be a sale of personalty.

Tbe demurrer to tbe amended declaration is hereby overruled, .and tbe case reversed and remanded.

Rever sed.