Opinion
37695.
DECIDED JUNE 8, 1959. REHEARING DENIED JUNE 24, 1959.
Complaint. Dougherty Superior Court. Before Judge Crow. March 14, 1959.
D.C. Campbell, Jr., Frank F. Faulk, Jr., for plaintiff in error.
Farkas, Landau Davis, Edmund A. Landau, Jr., contra.
The trial court did not err in sustaining the general demurrers to the petition as amended. There was no attempt in said action by the plaintiff to recover upon a quantum meruit basis.
DECIDED JUNE 8, 1959 — REHEARING DENIED JUNE 24, 1959.
Arthur F. Tyson filed a suit against Mrs. Thomas Howe Nimick, formerly Genevieve Nimick Childress, alleging substantially the following facts: That the plaintiff is engaged in doing business in Dougherty County as a logger; that the defendant lives in said county at what is known as the Magnolia Plantation; that the defendant is indebted to the plaintiff in the principal sum of $4,182, as the facts alleged show; that the defendant was formerly married to Wade T. Childress and continued as his wife until said parties were divorced on March 18, 1957; that during the first of 1950 when said defendant and Wade T. Childress were man and wife, they purchased together a total of 5,250 acres, located in Dougherty and Calhoun Counties; that some time during the early months of 1954 Wade T. Childress approached the plaintiff and offered to sell him certain swamp timber that was located on the property described as land lots Nos. 179, 180, 181, 182, 219, 220, 221, 222, 223, 258, 259 and 260, all being within the second land district of Dougherty County and also land lots 143, 179, 180, 181, 182, 219, 220 and 221 within the third land district of both Dougherty and Calhoun Counties, same comprising a total of 5,250 acres, more or less; that said defendant authorized her then husband, Wade T. Childress, to enter into this contract with the plaintiff by acting as her agent and in her behalf and within the scope of his agency and with her consent. It was set out that such agreement stipulated that the plaintiff would cut and remove from said described land only a limited number of trees, same being located in different sections of said property, at a price of $11 per 1000 feet; that plaintiff was to sell said timber "at Reynolds Brothers Lumber Company and that said company would in turn mail the defendant and her [then] husband the respective checks covering each week's transactions," and that said defendant agreed to permit the plaintiff a reasonable length of time in which to cut and sell the timber as outlined heretofore, taking into consideration prevailing weather conditions. The plaintiff further set out that, based on such agreement, the plaintiff and the defendant began doing business about May 1, 1954, and continued until around June 11, 1957, when the plaintiff was notified definitely by the defendant of her breach of the contract. The plaintiff further alleged that the defendant along with her said former husband, restricted him to cutting a limited number of trees each year because of "the excessive income tax that they would have to pay," and that the plaintiff has invoices from May, 1954, through December, 1954, indicating that the defendant and her former husband received from this transaction a total of $13,614.78; that they received $2,462.41 in 1955; that on each occasion the defendant was mailed a check and a statement covering the respective transactions; that the plaintiff has misplaced or lost the invoices covering the balance of 1955 and a portion of 1956, while the plaintiff and the defendant were doing business as alleged; that during the latter part of 1956, the plaintiff was authorized and directed by said Wade T. Childress to cut certain swamp timber located on the hereinbefore described property, and by doing so, the plaintiff necessarily had to construct certain runways over other lands in order to get to the trees which he had been directed to cut, thereby incurring an actual expense of $3,432, an itemized statement of same being attached to the petition. It was further alleged by the plaintiff that immediately after completion of the runways and the moving of the necessary equipment on the lands, he was advised by Wade T. Childress (acting for the defendant), and later by the defendant, to cease cutting and hauling timber from their premises, as they were having domestic troubles, but when these were settled, he would be authorized to resume his cutting, and in compliance therewith the plaintiff immediately discontinued such operations. The plaintiff further alleged that in March 1957 Wade T. Childress and the defendant were divorced and said Wade T. Childress has since left Dougherty County; that his present whereabouts is unknown to the plaintiff; that on February 8, 1957, said Wade T. Childress conveyed to the defendant all of the property described in this petition, and on which the plaintiff incurred the expenses alleged; that the plaintiff made numerous demands upon the defendant for the continuance of the contract, originally made by him with the defendant and her former husband, and that the defendant refused to carry out said contract on or about June 11, 1957. The plaintiff alleged that he has fully pursued all requirements of said contract as required of him, and the defendant has refused to pay said claims, thus constituting a "real, positive and substantial disagreement between the plaintiff and the defendant, as reflected and alleged herein. The plaintiff shows that he is without fault and that he did nothing whatsoever to cause the defendant to breach said contract." The plaintiff further avers that the defendant "has capriciously, arbitrarily, and in bad faith, refused to pay the plaintiff the amount due him under said contract . . . and said conduct of defendant, being solely for the purpose of harassing the plaintiff, and putting him to unnecessary expense and trouble, and for said reasons, the plaintiff shows that the said defendant, by her conduct, has damaged the plaintiff in the sum of $750 as attorney's fees, and $500 expenses incurred in making the plaintiff remove his equipment from said premises of the defendant by her breach of said contract." The plaintiff prayed for production of certain written instruments and that he have judgment against the defendant for $3,432, in addition to $750 attorney's fees, with interest and costs and any other further relief which the court might deem equitable and just.
The defendant demurred to said petition, both generally and specially, one of the grounds of special demurrer being that Wade T. Childress was not made a party to any suit on the contract.
No ruling or order was ever made by the trial court on said demurrer to the petition as originally filed.
Thereafter, on June 19, 1958, the plaintiff amended his original petition, adding (among other things) a count numbered 2, wherein he incorporated his original petition, and amended certain portions thereof substantially as follows: That at the time said suit was filed the plaintiff did not know the whereabouts of said Wade T. Childress, but that he acted as the defendant's agent in all the matters herein, and that the plaintiff does not now know where said Wade T. Childress is located. However, the plaintiff set up that said Wade T. Childress conveyed to the defendant all of his interest in said described lands; that it was the named defendant, and not the former husband of the defendant who caused the breach of said agreement and caused the plaintiff to quit the cutting of the timber, as contended; that the plaintiff works with heavy and expensive logging equipment which costs him a great deal to move and is difficult to set up in a given locality; that a major portion of the lands upon which the timber is situated consists of swamp lands containing large hardwood trees; that the use of said heavy equipment is required; that such timber is expensive to cut, such being black gum, oak, cypress, magnolia, ash and sweet gum, and was required to be removed in sizes not less than 12 inches across the stump; that the contract as originally entered into was oral but that the defendant had full knowledge and a keen insight into the nature of said lands and timber and the expense and trouble of cutting and removing same therefrom. The plaintiff alleged that when he entered into this agreement with the defendant she well knew that he would have to remove said hardwood trees from a large portion of said swampy lands, same being expensive, and said Wade T. Childress knew also all of the same, except that he had nothing to do with the matter save as the defendant's agent in the matter; that he was continually in contact with the defendant and her former husband and her attorney and they knew of the expense and trouble to which he was put in cutting the hardwood trees in said swampy portion of the lands.
In count 2 of this petition the plaintiff alleged that the commissions he would have received in pursuance of the contract, inhering in its existence and following his past performance thereof, were $10 net per thousand feet, and it was specifically agreed that he would be allowed to remove the trees from an area containing some 750,000 feet of hardwood timber, but that he was prevented from realizing such commission as a direct result of the defendant's breach of said agreement. The plaintiff amended his prayers by praying for judgment for $7,500 representing the damages he sustained in consequence of the defendant's alleged breach.
The defendant filed general and special demurrers to the plaintiff's petition, as amended, and to the amendment to the same. The court sustained said demurrers and dismissed the petition, as amended, and to this final order and judgment the plaintiff excepted and assigns error in his bill of exceptions to this court.
It is true, as contended by counsel for the defendant, that the alleged parol agreement between the parties, as set forth in the petition, as amended, was vague and indefinite in its terms; and that the former husband of the defendant, Wade T. Childress, should have been a party; and also that the plaintiff sued in this case for a breach and for damages resulting directly from a breach of this oral contract, and as within the contemplation of the parties, and there is no attempt by said plaintiff to sue the defendant and seek to recover upon a quantum meruit basis for the actual costs and expenses to which the plaintiff was put by reason of performing a portion of this alleged agreement made by him with the defendant and her former husband, Wade T. Childress, that is, for the damages and expenses incurred by reason of the plaintiff's cutting and removing a portion of the timber under said oral agreement.
It appearing that the contract, if there was an oral agreement, as contended by the plaintiff in the petition, as amended, between the plaintiff and the defendant, was a contract between the plaintiff, the defendant and her former husband, Wade T. Childress, who at the time owned one-half interest in the lands on which was growing the timber to be cut, that such agreement was too vague and indefinite, and that the former husband should have been a party to the suit, the general demurrers of the defendant (who alone was sued) were good, and the court did not err in sustaining them and dismissing the plaintiff's petition, as amended. However, the plaintiff was entitled to recover for the cost and other expenses incurred by him in seeking to cut and remove such hardwood timber from the lands, now belonging to this defendant alone, and the benefit of which work of cutting and logging was received by the defendant alone, and an action might properly lie in favor of the plaintiff against this defendant for such costs and expenses as he incurred in cutting and logging this timber, the benefit of which flowed to the defendant. However, no such action is brought in this case.
This was a case wherein the plaintiff, if entitled to recover at all, was entitled to recover for the expenses and costs resulting from cutting said timber, caused by the failure of the defendant to permit the completion of this alleged agreement. See Mimms v. Betts Co., 9 Ga. App. 718 ( 72 S.E. 271). Also see Code § 20-1407 showing that the damages properly recoverable are such as arise naturally and according to the natural course of things from the breach of an alleged contract.
In a proper case, it might be that the plaintiff could recover damages under the principle of law as set out under Code § 3-107, but this he does not seek to do in this case. See also Code §§ 20-1101 and 20-1407.
The court did not err in sustaining the general demurrers to the plaintiff's petition, as amended.
Judgment affirmed. Townsend and Carlisle, JJ., concur.