Watson v. Gross , 112 Mo. App. 615 ( 1905 )

BROADDUS, P. J.

This suit was commenced before a justice of the peace for the conversion of three cords of wood and two hundred posts. On the trial in the circuit court plaintiff recovered judgment and defendant appealed.

In November, 1902, defendant entered into a contract with Daisy and Harlan Douglas to sell them a certain farm situated in Atchison county. At the time of sale no money was paid but it was agreed that they would settle for the price of the farm in February, 1903, by payment of money and a mortgage on the land and other property. It was agreed between, defendant and the said Douglases that the latter had the privilege “to cut and remove portions of the timber standing on said premises” but that the same should remain the property of defendant and the proceeds be paid to him; but on final settlement for the price of the land the same was to be credited to the Douglases. Between the two dates mentioned, and while defendant was in Oklahoma, the purchasers made some ten or twelve written contracts with different third parties for the sale of specified parts of the timber standing on the land. When defendant returned from Oklahoma he found these numerous third parties cutting said timber. In order to protect himself, he entered into a new agreement with the Douglases, by which the contract for the sale of the laud was cancelled and possession was returned to him. The contract of cancellation recited the fact that the sales of timber had been made by said Douglas to certain parties, mentioning their names and the number of acres specifically each contract contained. This latter contract also provided that the purchasers were to be allowed to remove the timber purchased, but that such removal should be made by tbe first day of March, next thereafter.

One George Fox and plaintiff held one of these contracts for tbe purchase of timber; but as Fox sold out to plaintiff tbe latter was tbe only interested purchaser of tbe timber. Plaintiff testified that be bad no knowledge whatever of tbe contents of tbe contract of cancellation between tbe defendant and said Douglas. It was shown that Watson’s contract bad been destroyed by fire, consequently be was compelled to resort to proof of its contents; but it appears that tbe timber was to be removed by tbe first day of March, and Watson stated that tbe contract so provided.

Tbe timber was removed from tbe land upon wbicb it was cut but was deposited in a gulch at another point on tbe farm. Watson stated tbis was done with consent of the Douglases with permission for it to remain there indefinitely, or until be got ready to remove it. Watson also testified that on one occasion Douglas said, in tbe presence of defendant, that be gave Watson and Fox permission to pile tbeir timber in tbe gulch and that defendant said: “That is all right. I have no kick coming against Watson and Fox. It is those fellows on tbe other side: Watson and Fox are all right.” Douglas testified that defendant consented that plaintiff’s timber might remain in tbe gulch until be got ready to remove it. He also stated that bis contract did not require bim to move bis timber from tbe farm but only from tbe land where it stood. During tbe fall of tbe year 1903 plaintiff undertook to remove his timber from the gulch and was not permitted to do so by defendant.

One of the positions taken by defendant is, that the Douglases had no right under their contract for purchase of the land to sell and dispose of the timber thereon in the manner in which they did, and that the contract only contemplated that they themselves would have such right. But however that may have been, is of no consequence: for, by the contract of cancella/tion referred to, he adopted all the contracts for sale of timber to third parties; and they thus became as effective in law as if he had originally made them himself.

The only important question for review is, was the timber in question forfeited because it was not removed by the first day of March, 1903? We do not think that there was a forfeiture. As shown, it was removed from the land upon which it stood after being cut and deposited in the said gulch with permission of both Douglas’ and defendant — if credit is to be given to the testimony of Watson and Douglas, which was a question for the triers of the, facts. From the fact that the timber had been so removed from the land on which it was cut, and deposited in the gulch with defendant’s knowledge and sanction, it is reasonable to infer that he was not insisting' upon a strict compliance of the contract for its removal. Defendant expressed his consent to the deposit of the timber and he certainly understood that it was the intention of plaintiff to let it remain there until it suited his convenience to remove it. This seems to be a fair conclusion which any reasonable person would entertain from the circumstances. It was not shown that it was in defendant’s way in any manner or that it occupied ground that he desired to utilize for farming purposes. In fact, from the kind of place in which it was deposited we are warranted in coming to the conclusion it was placed there for the reason that it would be out of the way of the owner of the land. Courts are slow to enforce forfeitures and will ’not do so, if there is any reasonable excuse for doing otherwise. This is a well-established principle of law.

Under the circumstances the act of the defendant in reusing to permit plaintiff to take possession and remove the timber from the gulch was an act of conversion. [Sherman v. Commercial Printing Co., 29 Mo. App. 31; Foster Woolen Co. v. Woolman, 87 Mo. App. 658, and cases cited.]

There was evidence that some part of the timber in controversy was not dut from the two acres included in the contract from Douglas to the plaintiff and Fox, and which was transferred to the defendant at the time of the cancellation of the original sale of the land to the plaintiff. The original contract for the sale of the land to the Douglases, as stated, contained a permit for them to cut timber thereon. The language giving this right is without certainty of expression. It reads: .“Second party may also cut and remove portions of the timber now standing on said premises, but the same shall remain first party’s property and the proceeds shall be paid to him.” The term “portions of the timber” is altogether indefinite. Acting under this clause in the contract, the Douglases, as stated, sold timber to various third parties; to which defendant objected and a controversy arose which resulted, as before stated, in a cancellation of the contract of sale. Therefore, the right of Watson, under his authority from Douglas, to cut timber, was a doubtful right, but there is no question but what he was acting in good faith. But so far as the plaintiff’s right to cut timber from the two acres was concerned, it was ratified by the act of defendant in the said contract ,of cancellation.

But there is nothing in the evidence to show that defendant ratified the act of Douglas in permitting plaintiff to cut timber outside of said two-acre limit. Defendant’s permission to plaintiff to deposit said timber in the gulch is not accompanied with any evidence tending to show that defendant knew that any pant of it was cut from other than the said two acres. He did not thereby recognize plaintiff’s right to any portion cut outside of the two-acre limit. No court could say under the terms of the written contract of sale of the land what portion of timber the Douglases had a right to cut, consequently plaintiff, who had no greater right or title, failed to establish title to the timber outside of the two-acre limit. The title to the land being in defendant and the timber being a part thereof, it devolved upon plaintiff to show that he had parted with such title and that he, himself, was the owner. Therefore, instruction numbered three given for plaintiff was error as it was predicated upon the theory that if defendant knew that plaintiff was appropriating without objections the timber in excess of that which came off the two acres, their verdict would be for him. And it was also error for the same reason in the refusal of the court to give instruction numbered four asked by defendant.

We do not believe a party would be precluded from asserting his right to property as between himself and another upon the mere fact that he knew the other was appropriating such property and he made no objection at the time. . There would be lacking one essential element in the transaction, viz: a consideration. As to strangers who might afterwards acquire such property for a consideration and in good faith, the law would be otherwise.

And perhaps it is not out of place to say that the clause in said contract for the sale of the land permitting the Douglases to cut some portion of the timber is too uncertain for enforcement in a court of law, and could be binding on the parties only in so far as they mutually acted under it.

v For the error noted the cause is reversed and remanded.

All concur.