DocketNumber: No. 36763.
Citation Numbers: 35 So. 2d 300, 203 Miss. 420
Judges: <bold>McGehee, J.,</bold> delivered the opinion of the court.
Filed Date: 5/10/1948
Status: Precedential
Modified Date: 1/12/2023
The interference with the cutting of the timber here claimed was not by the appellant but by the holder of a mortgage on the land who notified the appellee to quit cutting timber unless he paid him, the mortgagee, $150 due the mortgagee under the appellee's contract with the appellant for the cutting of the timber. The appellee had already paid this amount to the appellant and it preferred to cease cutting the timber rather than pay it again, although he could have recovered it from the appellant under his warranty in the timber contract. The appellee was here presented with a choice of two courses of conduct — "knowing (in the language of the Supreme Court of Wisconsin in Peshtigo Lumber Company v. Ellis, supra) that the choice of one course will result in a lawsuit and that the choice of the other may forfeit valuable rights; but we have not supposed that this knowledge would relieve from the necessity of making a choice, or excuse one for sleeping on his contract rights."
The cases of Roberson v. Little,
Pitchford ratified the appellant's sale of this timber for which the appellant paid him $510 in cash and agreed to pay him $300 more, but failed to pay $150 of it. He of course violated this agreement with Pitchford but that *Page 434 fact did not warrant the appellee in refraining from cutting the timber when Pitchford advised him thereof, and that he would demand its payment. I have found no case factually similar to the one here under consideration, and the one nearest thereto which fully expresses my views, and, in my opinion, correctly announces the law applicable hereto, is Peshtigo Lumber Company v. Ellis, supra. What the court below did was simply to amend the contract entered into between the appellant and appellee contrary, in my judgment, to its right so to do.
The judgment should be reversed.