Citation Numbers: 183 Ky. 186
Judges: Clay
Filed Date: 2/4/1919
Status: Precedential
Modified Date: 7/24/2022
Opinion op the Court by
Affirming.
By written contract dated November 19,1907, Roberta S. Bryant sold to the Burnside Excelsior Company all of the linn and buckeye timber, suitable for making excelsior, then growing upon ber lands situated on either side of the Cumberland river, or any of its tributaries, between Jasper’s Ferry and Cumberland Falls. The Burnside Excelsior Company was to pay therefor $1.00 per cord and ten cents per cord for inspection, and was to have two years in which to cut and remove the timber. At the same time, it paid to Mrs. Bryant the sum of $1,000.00, as an advance payment on the timber. Before the expiration of the time for cutting and removing the timber the' Burnside Excelsior Company paid an additional $50.00, in consideration of which, the time was extended for another year.
Alleging that Mrs. Bryant furnished and delivered only 362 cords of timber, and that the $50.00 paid for the extension of the agreement was without consideration, the Burnside Excelsior Company brought this suit to recover the difference between the value of the timber furnished, and the $1,000.00 paid, or the sum r" $638.00, together with the sum of $50.00. It further alleged that by .reason of defendant’s failure to deliver the one thousand cords of wood it was compelled to puchase other wood at an expense of $1.00 per cord, and by reason thereof, had been damaged in the sum of $638.00. The allegations of the petition were denied by answer and a trial before a jury resulted in a verdict and judgment for defendant. Plaintiff appeals.
It appears from the record that Mrs. Bryant owned a very large body of land. After the contract was made, she notified plaintiff not to cut the timber on the lands known as the Stringer and Hudson tracts and the Campbell tracts, because those tracts were in litigation. The
Another ground urged for reversal is that defendant’s witnesses were' permitted to prove Mrs. Bryant’s title to the land by parol evidence. With the exception of the Stringer and Hudson tracts and the Campbell tracts, to which the testimony complained of did not' relate, no question of title was presented. The only question was how much timber had been cut, and how much remained on the other Bryant lands. The evidence complained of bore on these questions entirely, and not on the ownership of the land. Therefore, its admission was not error.
Judgment affirmed.