George E. Breece Lumber Co. v. Edwards , 1928 La. App. LEXIS 177 ( 1928 )

STATEMENT OP THE CASE.

REYNOLDS, J.

The O. S. Hawes Lumber Company and defendant R. L. Edwards, both owners and operators of sawmills and of tracts of merchantable pine timber of approximately 3,000,000 feet each, on September 24, 1923, entered into a written contract for an exchange of pine timber by the terms of which each was to take from the land of the other an equal quantity of timber to be determined on stumpage basis, thousand feet for thousand feet, and defendant R. L. Edwards agreed to cut, log and deliver his timber to the mill of the O. S. Hawes Lumber Company and was to be paid by it therefor $7.50 per thousand feet. The deliveries were to be made during the years 1923 and 1924 but by verbal agreement of the parties was extended to include the years 1925 and 1926.

At the conclusion of the deliveries under the contract it appeared that defendant R. L. Edwards had cut and appropriated from the timber of the other party 143,846 in excess of what'had been received by the other party from defendant R. L. Edward’s timber.

Alleging that by transfer on December 12, 1924, it succeeded to the rights of the O. S. Hawes Lumber Company under the contract with the consent, both express and implied of defendant R. L. Edwards, plaintiff George E. Breece Lumber Company brought this action to recover from defendant the sum of $511.44, as and for 143,846 feet of timber at $4.50 per thousand feet, amounting to $647.31, less $135.77 severance tax paid by defendant.

Defendant excepted to the petition on the ground that it disclosed no cause of action and by agreement of parties the exception was referred to the merits.

Defendant then answered denying that plaintiff was legally subrogated to the rights of the O. S. Hawes Lumber Company and alleging that the transfer from the O. S. Hawes. Lumber Company to plaintiff was void because it affected realty and was not in writing.

Defendant further alleged that acting under the contract it cut, in addition to the number of feet alleged by plaintiff to have been received by it, 841,740 feet of timber and was moving it out of the swamp, preparatory to sending it to plaintiff’s mill when plaintiff stopped him from making further deliveries and that in consequence said timber, which plaintiff was obligated to take, remained on the ground for two years and plaintiff refused to accept it and defendant, in order to minimize his loss, hauled it to his own sawmill and manufactured it into lumber and suffered a loss thereon of $4.00 per thousand feet or $3,366.96, and he reconvened against plaintiff for that amount.

On these issues the case was tried and there was judgment in favor of plaintiff for $511.54 with legal interest from judicial demand, and defendant appealed.

OPINION.

EXCEPTION OP NO CAUSE OP ACTION.

Defendant did not set out in his exception wherein the petition was lacking in stating a cause of action, but in his answer he alleges that the petition shows no cause of action because the subject matter of the contract is realty and plaintiff could acquire an interest therein only by a writing and a written assignment is not alleged.

If the validity of the assignment of the contract could be raised by defendant we think he is estopped to question it by reason of his reconventional demand.

Besides, the contract only related to standing timber, and as to standing timber see—

Cleaton vs. Dowling, 164 La. —, 113 South. 759. No. 9 Southern Reporter, Advance Sheets, September 17, 1927.

There is no merit in the exception.