Smith v. Cowart , 75 Ga. App. 268 ( 1947 )

1. (a) Under the allegations of the petition, the court erred in sustaining the general demurrer and ground 1 of the special demurrer, which attacked the petition for the reasons that the description of the timber to be cut was insufficient, and the time in which it was to be cut was not specific.

(b) Grounds 3 and 4 of the demurrer are without merit.

DECIDED JUNE 7, 1947. James O. Smith filed a petition against Clifford H. Cowart for the recovery of $1034. A demurrer was filed to the petition, which the court sustained. The plaintiff assigns error on this judgment. The plaintiff's petition, omitting the formal parts, to paragraph 4, alleges a contract, a copy of which is attached to the petition. Paragraph 4 as amended reads: "That the sawing on the Chester place was completed the last of April, 1946, and that defendant caused said sawmill outfit to be moved upon the home place of your petitioner by one Joe Mitchell to whom said defendant had sold said outfit and that there were sawed at and for the sum of $22 per thousand, 94,000 feet. Then the said Joe Mitchell refused to saw any more timber on petitioner's home place for less than $28 per thousand, that petitioner notified the said defendant and advised him that he expected the timber on his home place to be logged, sawed for $22 per thousand, as provided in said contract. That the said Coward failed to make arrangements with the said Mitchell or anyone else to log and saw said timber at $22 per thousand and that after going to the said Cowart at least three times and demanding that he arrange with the said Joe Mitchell or someone else to log and saw said timber and the said Cowart having refused and failed to arrange for the logging an sawing of same, your petitioner then and there arranged with the said Joe Mitchell to log and saw said timber at and for the price of $28 per thousand, and that petitioner has paid him for same which was $6 per thousand in excess of the contract price between petitioner and defendant. That the said Coward sold said sawmill outfit to one Joe Mitchell and that the defendant informed your petitioner that the said Joe Mitchell had agreed to carry out his (Cowart's) agreement, to cut, log and saw the timber on plaintiff's place at and for the sum of $22 per thousand and that said Cowart directed plaintiff to settle with the said Joe Mitchell at the rate of $22 per thousand. Plaintiff did settle with said Joe Mitchell and paid him $22 per thousand for ninety-four thousand feet, thereby complying with his contract with said defendant in every respect. That on or about the 25th of July, 1946, the said Joe Mitchell quit logging, cutting and sawing and advised the plaintiff that he was not going to cut, log and saw any more at the rate of $22 per thousand. Then plaintiff and said Joe Mitchell went to see, and did see, the defendant, and notified him that said Joe Mitchell had quit and was not going to saw any more at the rate of $22 per thousand, and plaintiff asked defendant to arrange with the said Joe Mitchell or someone else to cut, log, and saw said timber and that four or five days after that, plaintiff asked the defendant if he had made any arrangements with anyone to cut, log and saw said timber, and defendant told him that he had not, and did not expect to see anybody about cutting, logging, and sawing it, and that he was through with it, and did not expect to have anything else to do with it, and that if plaintiff wanted it sawed, he could make his own arrangements. During this time the said Joe Mitchell was shut down and was not cutting, logging, and sawing and was threatening to move his mill off the plaintiff's farm. The said Mitchell had offered to continue cutting, logging, and sawing if the plaintiff would pay him $28 per thousand. Plaintiff contacted other sawmillers in the same area and tried to get them to saw it, but he was unable to get anyone that would agree to cut, log and saw it for $28 per thousand feet. Then it was on August 3, 1946, that he made a trade with the said Joe Mitchell to cut, log and saw said timber on his home place for $28 per thousand, all of which was done after the defendant broke the contract sued on in this case, and refused to carry it out or to try to get any one else to carry it out, and thus compelled the plaintiff to employ some one else to carry out said contract and have said timber cut, logged and sawed. That $28 per thousand was reasonable price to pay at that time and in that community, and was a fair market value for cutting, logging and sawing timber into lumber."

Paragraph 5 reads: "Petitioner shows that after said defendant through the said Joe Mitchell refused to continue logging and sawing said timber for $22 per thousand that he made investigations and inquiry and got prices from other sawmillers and that $28 per thousand was the best and lowest price that petitioner could obtain for logging and sawing said timber."

The contract, omitting the formal parts, reads: "This agreement made and entered into this the 5th day of April, 1946, between James O. Smith and Clifford H. Cowart:

"Whereas, the said James O. Smith and Clifford H. Cowart are joint owners of a certain sawmill and motor, the said James O. Smith has this day traded all right, title, and interest in and to the said sawmill and motor, for one 1 1/2 ton G. M. C. Truck, and one mule, black horse mule, weighing about 1150 pounds, age about ten years.

"As a further consideration of this contract and agreement, the said Clifford H. Cowart, agrees that as soon as the present boundary of timber is sawed and converted into lumber, where said sawmill is now located on the property of Claiman Chester, that the said Clifford H. Cowart will move said sawmill to the home place and lands of James O. Smith, and cut, log and saw a boundary of timber for the said James O. Smith for which the said Clifford H. Cowart is to receive $22 per thousand feet for cutting, logging, sawing and converting said timber into lumber, throwed over the skid poles, for which the said James O. Smith agrees to pay and settle for timber converted into lumber on the 1st and 15th of each month until all of said timber is cut and converted into lumber as heretofore agreed.

"This agreement made in duplicate, each copy will be considered, as an original, and signed by both of the parties hereto. Witnesseth under their hands and seals. Signed: James O. Smith. Clifford H. Cowart."

The demurrer, omitting the formal parts, reads: "Said petition fails to set forth a cause of action and should be dismissed.

"2. Defendant demurs specially to paragraph three of the petition of the plaintiff in said matter and moves the court to dismiss the same upon the ground that said paragraph three of the exhibit attached and made a part thereof does not describe the property on which said sawmill was to be moved, and that the description in said paragraph and exhibit is insufficient in law and is too indefinite upon which to base a recovery, or to put this defendant on notice of the lands that he would be expected to cut the timber.

"3. Defendant demurs specially to paragraph four of the plaintiff's petition and moves the court to dismiss the same upon the ground that said paragraph has reference to certain transactions that he had with one Joe Mitchell, and alleges no facts or circumstances upon which to base a recovery against this defendant, and further fails to allege any facts or that this defendant ever refused to comply with any purported contract.

"4. Defendant demurs specially to paragraph five of the petition of plaintiff and moves the court to dismiss same upon the ground that said paragraph fails to show any fact or circumstance that would indicate that this defendant had failed to comply with any agreement or contract that he had with the plaintiff, or that he personally had any opportunity to comply with an agreement with the plaintiff, or that any demand or request was made upon this defendant." 1. (a) In our opinion the contract between the parties in this case was one for services. It did not involve the title to timber, nor the title to land. It will be further observed from the allegations of the petition that after one of the partners, the plaintiff, sold his interest in the sawmill to the other partner, the defendant, it was agreed between them that when the timber had been cut on the Chester place, where the sawmill was then located, the sawmill was to be moved by the defendant "to the home place and lands of James O. Smith, and cut, log and saw a boundary of timber for the said James O. Smith, for which the said Clifford H. Cowart is to receive $22 per thousand feet for cutting, logging, and sawing and converting said timber into lumber throwed over the skid poles. . ." The petition alleges that thereafter the defendant sold the sawmill to one Mitchell, whom the defendant claimed he had procured to perform the contract with the plaintiff. After the milling was completed on the Chester place, the sawmill was caused to be moved by the defendant to the home place and lands of the plaintiff. 94,000 feet of the timber was cut at the contract price of $22 per thousand on behalf of the defendant, and paid for by the plaintiff. Thereafter, the petition alleges that the defendant refused to cut the remainder of the "boundary of timber" on "the home place and lands of James O. Smith." We think this suit is for damages for the breach of a simple contract and does not involve the sale of timber which would involve the title. And we are further of the opinion that the description, in view of all the allegations of the petition and the terms of the contract between the parties, is sufficient to set out a cause of action. It would seem that there was no question as to the definiteness of the description when the defendant procured the sawmill to be moved upon the lands of the plaintiff and cut 94,000 feet of timber therefrom. And further it appears that after the price for cutting the timber was raised from $22 per thousand to $28 per thousand, there was no difficulty because of indefiniteness of description to locate and cut the remainder of 174,000 feet of the timber. This court held in the case of McIntosh Land Timber Company v. Middleton, 24 Ga. App. 719 (102 S.E. 171), in a situation similar to the one here, under a simple contract, that "a description of the lands from which is to be furnished the timber which that party agrees to cut into lumber, by designating them as ``The Thicket' is sufficiently definite and certain by way of identification of the timber." See also, in this connection, Pope v. Barnett, 50 Ga. App. 199 (2) (177 S.E. 358).

It is contended here that the contract involved is unenforcible for the further reason that no time is specified within which the timber of the plaintiff is to be cut. In such a situation, the law would imply a reasonable time within which to perform the contract. Ray v. Hutchinson, 27 Ga. App. 448 (108 S.E. 815). In Moxley v. Adams, 190 Ga. 164 (3-a) (8 S.E.2d 525), the Supreme Court said: "In the absence of any express provision, limiting the time within which the grantee of the right of soil removal should exercise that right, the parties must be held to have intended a reasonable time under all the facts and circumstances as shown by the lease and option instrument and the purposes for which the instrument was executed and the soil was to be used."

Counsel for the defendant in error cite a number of cases to sustain his contention that the court correctly dismissed the petition in the instant case on demurrer. Among them are:Kimbrell v. Thomas, 139 Ga. 146 (76 S.E. 1024); Clarke v. Stowe, 132 Ga. 621 (64 S.E. 786); Sarmon v. Liles,150 Ga. 338 (103 S.E. 797); Holt v. Tate, 193 Ga. 256 (18 S.E.2d 12). There are also a number of other cases cited, all of which involved similar, if not identical questions to those which we have cited. Each of the cases cited on behalf of the defendant involves the title to land or timber. The principles therein elucidated are not applicable to the facts in the instant case. Thus far we have dealt only with grounds 1 and 2 of the demurrer which attacked the description of the property involved for indefiniteness, and the time within which the contract was to be performed.

(b) We think a comparison of the other grounds of the demurrer with the allegations of the petition itself will reveal them to be without merit.

The court erred in sustaining the demurrers to the petition and in dismissing it.

Judgment reversed. MacIntyre, P. J., and Townsend, J.,concur.