Opinion
No. 38539.
November 24, 1952.
1. Statute of frauds — oral sale of standing timber — license to cut.
An oral sale of standing timber will not pass title because within the statute of frauds, but, until revoked, it will constitute a license to enter upon the land and cut the timber. Sec. 264, Code 1942.
2. Trespass — logs and logging — statutory penalty.
Where the oral licensee above mentioned entered upon the land and began to cut the timber but upon being ordered by the title owner to stop, the licensee immediately obeyed the order, he will not be held liable for the statutory penalty.
3. Trespass — logs and logging — statutory penalty.
In the absence of sufficient evidence to show that there was a willful wrong in cutting timber on the lands of another or that in connection therewith there was such gross negligence or such real indifference, or such lack of good faith as to be tantamount to willfulness, the statutory penalty should not be allowed.
4. Logs and logging — actual value of timber cut from owner's land — issues as to who got the timber.
Where the total value of the timber cut on the owner's land was shown but the owner admitted that he received a part of the timber so cut and there was a substantial dispute as to who got the remainder, a peremptory charge for the owner which would have allowed him to recover for the total value was properly refused.
5. Logs and logging — license to cut timber — payment for timber cut.
Where the oral licensees to cut timber did not at any time pay the landowner any sum whatever for the timber so cut and received by them, they were not entitled to a peremptory charge that nothing could be recovered from them.
6. Logs and logging — trespass — liability of seller without title.
The general rule is that one who merely sells property to which he has no title is not liable for trespass committed by his vendee, wherefore a party who transfers by oral agreement a license to cut timber, which license he himself held by an oral agreement, is not liable to the landowner for the cutting of the timber by his oral grantee, when he had received nothing from his grantee or any of the timber cut or any of the proceeds therefrom.
Headnotes as approved by Holmes, J.
APPEAL from the circuit court of Lamar County; SEBE DALE, Judge.
J.W. Shanks and L.C. Bridges, for appellant.
First, the purported oral contract entered into between the defendant, O.H. Landers and Curtis Nations was in violation of the statute of frauds and more specifically Sec. 832, Code 1942. See Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1; also Walton v. Lowrey, 74 Miss. 484, 21 So. 243.
Second, Curtis Nations, the husband of Mrs. Evelyn Nations, had no authority to, nor could he, bind Mrs. Evelyn Nations to an oral contract for the sale of the timber under the facts as presented, and even if such a contract could have been lawfully entered into, the proof shows that Mrs. Nations was the owner of the land, that it was not her homestead and no instrument in writing or parol evidence was offered to show that Curtis Nations had any authority or right to act for her in the capacity of agent.
Third, even though such oral contract could have been legally entered into and even though the Court could find that Curtis Nations was acting as an agent for his wife in the oral contract, such contract was without notice and void as to the rights of the appellant who acquired the title to land and timber by written instrument prior to the trespass of the defendants thereon.
Fourth, the doctrine against "unjust enrichment" will not allow the defendants to escape liability for the cutting and hauling away of the trees in question, when the undisputed proof shows that appellant, who was the owner of the land from which the trees were cut, has received no payment whatsoever for the trees cut therefrom without his permission or consent.
The burden of proof was on appellees to prove that the trees were cut through accident, inadvertence or mistake, and that reasonable care was taken to avoid the same. See Keirn v. Warfield, 60 Miss. 799.
Appellees wholly failed to meet this burden. The facts are that appellant's land was under fence, that they not only cut timber from the lands purchased by appellant from Mrs. Nations, but about one-third of the trees were cut on land owned by appellant since January, 1946, and over an area of 20 to 30 acres. There is no evidence that Mr. Nations pointed out the land lines, nor that appellee O.H. Landers made any attempt to determine the ownership of the land and no testimony of any kind from Mr. John Rogers.
We submit that appellant met each and every burden of proof resting on him to maintain this action under Sec. 1075, Code 1942, and that appellees have wholly failed to meet the burden of proof required to defend this action and that this honorable Court should reverse same and render a verdict in favor of appellant in the premises.
E.F. Coleman, for appellees.
I. Argument and authorities sustaining the action of the lower court in overruling motion for directed verdict for actual value of trees because the evidence was in conflict as to the actual value of the trees. Mobile O.R. Co. v. Cox, 153 Miss. 597, 121 So. 292; Columbus G.R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277.
II. Argument sustaining the action of the lower court in overruling motion for directed verdict as to the statutory penalty for willfully cutting of trees for the reason that the appellees bought the timber from a third person and was authorized to cut the timber from the land. Seward v. West, 168 Miss. 376, 150 So. 364; E.L. Bruce Co. v. Edwards, 192 Miss. 1, 3 So.2d 846.
III. This Court should sustain the judgment because case was submitted to the jury on conflicting testimony and under proper instruction and the jury returned a verdict for the defendants, appellees here. Bernheim v. Dibreill, 11 So. 795; Payne v. Wynne, 126 Miss. 271, 88 So. 705.
IV. A jury's verdict or findings based on conflicting testimony will not be disturbed on appeal. Alabama V.R. Co. v. Dear, 87 Miss. 339, 29 So. 812; Gunter v. Yazoo M.V.R. Co., 145 Miss. 475, 111 So. 105; Saenger Theatres Corp. v. Herdond, 180 Miss. 791, 178 So. 86; Gee v. Rimmer, 188 Miss. 460, 195 So. 342.
The appellant brought this suit in the Circuit Court of Lamar County alleging the unlawful and willful cutting by the appellees of 80 hardwood trees on the lands of the appellant in Lamar County, and seeking to recover the actual value of the trees in the sum of $1,000.00, and the statutory penalty therefor in the sum of $1,200.00, or the total sum of $2,200.00. The appellees answered, denying liability, and upon the conclusion of the evidence the cause was submitted to the jury and resulted in a jury verdict for the appellees, and judgment was entered accordingly. From this judgment the appellant prosecutes this appeal.
The undisputed facts are substantially as follows: The appellant was the owner of 120 acres of land in Lamar County, and on January 8, 1951, acquired by deed from Evelyn Nation 80 acres adjoining, subject to a reservation of the minerals therein. Some two, three, or four days prior to the execution of this deed, the appellee, O.H. Landers, who from time to time bought timber for the appellee, John Rogers, and for which Rogers paid him a commission, purchased by oral agreement from Curtis Nation, with the assent and acquiescence of his wife, the timber on Mrs. Nation's land in Lamar County, and Landers was then told that he might proceed to cut the timber. Landers resold the timber by verbal agreement to Rogers, and Rogers, without knowledge of the conveyance to the appellant, entered upon the land and began cutting. He was stopped by appellant, but before he was stopped he cut 80 hardwood trees, cutting all of them from the 80 acre tract except about one-eighth thereof, which were cut from the adjoining 120 acres of the appellant. Neither Mrs. Nation nor the appellant were paid for the timber.
According to the testimony of the appellant, Rogers hauled away all of the trees with the exception of some small trees and tops, which appellant took possession of and derived therefrom $175.00. Appellant testified that the trees cut comprised 250 board feet to the tree, or a total of 20,000 feet, and that the value thereof was $50.00 per thousand, or a total of $1,000.00. The testimony of the appellees showed that Rogers did not haul away any of the timber but that he left it and that the appellant sawed it and appropriated it to his own use.
Upon the conclusion of the testimony, the appellant asked and was refused a peremptory instruction to the jury to return a verdict for the appellant for actual damages in the sum of $1,000.00, and for the statutory penalty in the sum of $1,200.00. The appellant assigns this as error. We are of the opinion that the trial court committed no error in refusing this requested instruction. The proof was insufficient to justify the award of the statutory penalty. (Hn 1) It is true that the verbal agreement under which Landers bought the timber from Mrs. Nation and was authorized to cut it, and the like verbal agreement under which Landers resold to Rogers, were void because within the statute of frauds. Sec. 264, Code of 1942; Harrell v. Miller, 35 Miss. 700, 72 Am. Dec. 154; Queen City Hoop Company v. Barnett, 127 Miss. 66, 89 So. 819. Nevertheless, these agreements constituted a license to enter upon the land until revoked. Walton v. Lowrey, 74 Miss. 484, 21 So. 243. The proof fails to show that Rogers knew of the conveyance by Mrs. Nation to the appellant at the time he entered upon the land and cut the timber, (Hn 2) and affirmatively shows that Rogers immediately ceased cutting upon notice of the appellant's claim. (Hn 3) The evidence is insufficient, therefore, to show that there was a willful wrong committed in the cutting of the timber, or that there was in connection therewith such gross negligence, or such real indifference, or such lack of good faith as to be tantamount to willfulness, and in the absence of such showing the statutory penalty should not be allowed. Seward v. West, 168 Miss. 376, 150 So. 364, 366; Pippen v. Sims, 51 So.2d 272; Sansing v. Thomas, 52 So.2d 478. (Hn 4) There is another reason, however, why the requested peremptory was correctly refused. The instruction directed the jury to return a verdict for the actual value of the timber in the sum of $1,000.00. The appellant's proof showed the value of the timber to be $1,000.00. The appellant testified that he got some of the smaller logs and some of the tops and that he received for these $175.00. In no event, therefore, was he entitled to recover more than the difference between $1,000.00 and $175.00, or the total sum of $825.00. A further reason for the refusal of the peremptory is that the evidence as to who got the timber after it was cut, that is to say, whether the appellant or Rogers got it, was conflicting and this issue was one proper to be submitted to the jury.
It is complained, however, that the trial court was in error in granting to the defendants the following instructions:
"The Court instructs the jury for the defendants that if you believe, from the evidence in this case, that the defendants cut the timber in question from the land in question and while so cutting the said timber the plaintiff informed the defendants that he owned the timber but authorized them to cut same, your verdict shall be for the defendants even though you may believe that the defendants did not pay John Hudson, Jr., for the timber."
"The court instructs the jury for the defendant that if you believe, from the evidence in this case, that the defendant purchased the timber in question from Curtis Nation prior to the time John Hudson, Jr., purchased the land from Mrs. Curtis Nation, your verdict shall be for the defendants even though you may believe from the evidence that the defendant has not paid Curtis Nation or his wife Mrs. Curtis Nation for the said timber."
(Hn 5) We think the granting of these instructions was reversible error. The instructions were peremptory in nature under the facts of this case and authorized a verdict for the appellees even though the appellees got the timber and never paid for it. The record in this case clearly shows that the appellant was the legal owner of the timber which was cut and if either of the appellees got the timber, he was obligated under the facts of this case to pay the appellant therefor.
The evidence in this case, however, fails to show that the appellee, O.H. Landers, got any of the timber or that he cut the same or supervised or participated in the cutting. His only connection with the transaction was his purchase of the timber by oral agreement from Mrs. Nation and his resale thereof to Rogers by oral agreement and without any assurance of title. His contract for the purchase of the timber was void because it was verbal and within the statute of frauds. Nevertheless, the fact that he sold to Rogers the timber to which he had no title did not render him liable for the trespass committed by his vendee. (Hn 6) The general rule is that one who merely sells property to which he has no title is not liable for trespass committed by his vendee. 63 C.J., p. 934; Gilmore-Puckett Lumber Co. v. Bank of Tupelo, 177 Miss. 152, 170 So. 682, 683; Odom v. Luehr, et al., 57 So.2d 867. We are of the opinion, therefore, that the record fails to show liability on the part of Landers for the timber which was cut and that the judgment of the court below as to the appellee Landers should be affirmed. Because of the error of the trial court in granting the two instructions above set out, the judgment of the court below as to the appellee Rogers must be reversed and the cause remanded.
It follows from the views expressed that the judgment of the court below is affirmed as to the appellee, O.H. Landers, and reversed and remanded as to the appellee, John Rogers, and it is directed that the appeal costs be assessed against the said appellee, John Rogers.
Affirmed in part, and reversed and remanded in part.
Roberds, P.J., and Hall, Lee, and Arrington, JJ., concur.