Opinion
No. 36690.
April 26, 1948.
1. ACCORD AND SATISFACTION. Logs and logging.
Provision in timber deed for primary term of three years for extension of not more than two years upon payment in advance of stated amount was ambiguous as to whether stated amount was to be paid for two years' extension or for each additional year, but endorsement by grantors of check for stated amount without objection to notation thereon that it was for two years' extension constituted accord and satisfaction precluding grantors from asserting after expiration of first year of extension that grantee's rights under extended grant had expired.
2. CORPORATIONS.
Where timber was conveyed to corporation by warranty deed, corporation had the right under common law covenants of warranty to sell the timber or otherwise dispose of it in liquidation of corporation, and copartnership composed of former stockholders of corporation to which liquidator conveyed the timber pursuant to a resolution of corporation was entitled to cut the timber thus conveyed after dissolution of corporation.
APPEAL from the Chancery Court of Adams County.
Brandon, Brandon, Hornsby Handy, of Natchez, for appellants.
The timber deed or timber contract at suit in this cause must be construed most strongly against the appellees, whose attorney prepared the same. If there be ambiguity in the contract or any uncertainty as to the meaning of the terms and language employed therein, such language must be construed most strongly against the appellees.
Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 739.
It is a general rule of construction adhered to in Mississippi that the language in the contract or deed imposing obligations of payment must be construed most strongly against the obligor in favor of the obligee or payee.
Love Petroleum Co. v. Atlantic Oil Producing Co., 169 Miss. 259, 152 So. 829, 153 So. 389.
In construing the timber deed or contract, this court must come to the conclusion that the same required a $400.00 payment for each of the allowed two years of extension of time. To hold that only one payment of $400.00 was required to obtain a two year extension of time under the timber deed or contract here involved, it would be necessary for this Court to write into the contract language not incorporated therein or to ignore and strike therefrom the following language: "The first of such payments for additional time to be made on or before the 1st day of January, 1943, and the second, if the additional year is desired, on or before January 1, 1944."
This Court has time and again held that in construing particular provisions of a contract the contract or agreement as a whole will be looked to and its meaning determined from the entire contract.
Lampkin v. Heard, 137 Miss. 523, 102 So. 565; Continental Casualty Co. v. Pierce, 170 Miss. 67, 154 So. 279.
The language employed by the parties in the timber deed or contract conclusively demonstrates that a $400.00 payment should be required for each of two permitted years of extension. No other possible construction can be reached by reading the instrument itself. The intention of the parties is clearly expressed therefrom.
See Jones v. Mississippi Farms Co., 116 Miss. 295, 76 So. 880; Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 296.
If the language contained in the timber deed is plain and unambiguous, the provisions thereof must control.
Citizens Lumber Co. v. Netterville, 137 Miss. 310, 102 So. 178.
If the terms and provisions of a contract are reasonable, the same must be given effect as written.
Shapleigh Hardware Co. v. Spiro, 141 Miss. 38, 106 So. 209, 44 A.L.R. 393.
Every word and part of the contract or timber deed must be given effect, if possible.
Mississippi Power Light Co. v. A.E. Kusterer Co., 156 Miss. 22, 125 So. 429.
By accepting the check for $400.00 the appellants were not estopped from contending as they now do in this suit.
Estoppel by contract arises only from an act or declaration of a person fradulently intended or calculated to mislead another, on which the other has relied and so acted or refrained from acting that injury would befall him if the truth of the act or declaration be denied.
Staton v. Bryant, 55 Miss. 261.
Equitable estoppel operates only in favor of one who, in reliance upon the act, representation, or silence of another, so changes the situation that injury would result if the truth were shown.
Davis v. Butler, 128 Miss. 847, 91 So. 279; Izard v. Mikell, 173 Miss. 770, 163 So. 498; Meyerkort v. Warrington (Miss.), 19 So.2d 433; Scottish-American Mortgage Co. v. Bunckley, 88 Miss. 641, 41 So. 502, 117 Am. St. Rep. 763; Mississippi Power Light Co. v. Pitts, 181 Miss. 344, 179 So. 363; Mississippi State Highway Commission v. West, 181 Miss. 206, 179 So. 279; Hopkins v. Hopkins, 174 Miss. 643, 165 So. 414.
The evidence offered by the appellees, over the objection of the appellants, tending to vary, alter or modify the terms and provisions of the timber deed or contract was inadmissable.
Ballard v. Brown, 93 Miss. 104, 46 So. 137; Edrington v. Stephens, 148 Miss. 583, 114 So. 387; Jourdan v. Albritton, 146 Miss. 651, 111 So. 591; Kendrick v. Robertson, 145 Mss. 585, 111 So. 99; Dodge v. Cutrer, 101 Miss. 844, 58 So. 208; Stone v. Grenada Grocery Co., 180 Miss. 566, 178 So. 107; Allen v. Allen, 175 Miss. 735, 168 So. 658; Perrault v. White Sewing Machine Co, 157 Miss. 167, 127 So. 271; McArthur v. Fillingame, 184 Miss. 869, 186 So. 828; Grenada Auto Co. v. Waldrop, 188 Miss. 468, 195 So. 491.
The appellees, Louis Wax, Sr., and Mrs. Mary Posey Wax, doing business as co-partners under the firm name of Wax Lumber Company, had no rights under the timber deed, inasmuch as the rights granted to Wax Lumber Company, Inc., were not made assignable and transferable and did not inure to the successors or assigns of the corporation.
R.B. Tyler Co. v. Laurel Equipment Co, 187 Miss. 590, 192 So. 573; Burrus v. Gordon, 57 Miss. 93; Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189; Staton v. Bryant, supra; 4 Am. Jur. 233, Sec. 5, p. 235, Sec. 6, p. 236, Sec. 8; 23 Am. Jur. 599, Sec. 2; 38 C.J. 188, Sec. 79.
Clay B Tucker, of Woodville, for appellees.
The law of the State of Mississippi does not favor forfeiture, and before a forfeiture will be decreed or adjudged they must come within the terms of the statute imposing that liability.
Citizens Bank of Hattiesburg v. Grigsby et al., 170 Miss. 655, 666, 155 So. 684.
The grantors in the timber deed in question here, relying upon a condition to work a forfeiture, must stand upon their legal rights and any ambiguity in their deed or defect in the evidence offered to show a breach will be taken most strongly against them and in favor of the grantee, and a condition will not be extended beyond its express terms by construction. Therefore, the true rule in this case is that the language upon which the grantors, the appellees here, base their condition to work a forfeiture must be construed with great strictness, and all ambiguity in their deed or defect in the evidence offered to show a breach must be taken most strongly against them and in favor of the grantees, the appellees here.
Sumter Lumber Co. v. Skipper, 183 Miss. 595, 599, 184 So. 296.
It is our contention that the clause of language in the deed to the effect that, if the Wax Lumber Company failed to remove the said timber within the said three years herein limited, it shall be granted an additional period of not more than two years thereafter, provided it pay in advance the sum of $400.00, the first of such payments for additional time to be made on or before the 1st day of January, 1943, and the second, if the additional year is desired, on or before January 1, 1944, must be construed most strongly against the appellants, and in favor of the appellees. This being true, this Court in construing this clause or praragraph in the deed must do so as it is written, and that the same required a $400.00 payment in advance for an additional period of not more than two years after December 11, 1942. We submit that the language employed by the parties in the timber deed absolutely demonstrates that an additional period of not more than two years thereafter was to be granted upon the payment in advance by the grantees, the appellees herein, of the sum of $400.00, and that said language in no wise contemplates the payment of $800.00 for an additional period of not more than two years.
The most dominant portion of the clause in controversy in the said timber deed is: "It shall be granted an additional period of not more than two years thereafter provided it pay in advance the sum of $400.00," and the court will give effect to dominant portion of clause as against subordinate conflicting portion in said timber deed of, "the first of such payments for additional time to be made on or before the 1st day of January, 1943, and the second, if the additional year is desired, on or before January 1, 1944."
See Miller et al v. Magnolia Building Loan Ass'n et al., 160 Miss. 367, 134 So. 136.
The appellees by endorsing, accepting and retaining the proceeds of the check in evidence of $400.00 dated December 8, 1942, with the following plainly and expressly written on its face: "Endorsement is a receipt in full for account as noted below: Extension time remove timber to 12-11-44 Deerfield Plantation, containing 1584 acres, more or less, Lots 1, 2, 3 and 4, Section 57, containing 177 acres, more or less, Township 5, North Range 1 West," constituted accord and satisfaction insofar as the extension of time of two years is concerned.
Clayton v. Clark, 74 Miss. 499, 21 So. 565, 37 L.R.A. 771, 60 Am. St. Rep. 521; Cooper v. Yazoo M.V.R. Co., 82 Miss. 634, 35 So. 162; Alabama V.R. Co. v. Kropp, 129 Miss. 616, 92 So. 691; Phillips v. St. Paul Fire Marine Ins. Co., 156 Miss. 41, 125 So. 705; Greener Sons v. P.W. Cain Sons, 137 Miss. 33, 35, 101 So. 859; Rucker v. King Construction Co., 159 Miss. 387, 131 So. 872; State Highway Department v. Duckworth et ux., 178 Miss. 35, 172 So. 148; Crabb v. Wilkinson et al., 202 Miss. 274, 32 So.2d 356; 1 C.J. 544; 1 R.C.L. 191.
A person may not avoid the consequences of his acts on the ground that he did not read or pay any attention to the contents of the writing that he had signed, unless he was induced not to read it or have it read to him by fradulent representation made to him by the other party on which he was entitled to rely.
Koenig v. Calcote et ux., 199 Miss. 435, 25 So.2d 763; McCubbins v. Morgan et al., 199 Miss. 153, 23 So.2d 926-927; Continental Jewelry Co. v. Joseph, 140 Miss. 582, 585, 105 So. 639; Gunter v. Henderson Molpus Co., 149 Miss. 603, 621, 115 So. 720; Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 64, 178 So. 914; Alliance Trust Co. v. Armstrong, 185 Miss. 148, 163, 186 So. 633.
If appellee is in error in contending that appellants in accepting and retaining the proceeds of the said check constituted accord and satisfaction insofar as the extension of time for two years is concerned, then appellees say that appellants are estopped by their endorsement and retaining of such proceeds of said check to deny that such payment was for a two year extension of said timber deed or an extension to the 11th day of December, 1944.
Crabb et al. v. Wilkinson et al., supra; Koenig v. Calcote et al., supra; Staton v. Bryant, 55 Miss. 261; Strauss Bros. v. Denton, 140 Miss. 745, 106 So. 257, 45 A.L.R. 341; Wellford Withers v. Arnold, 162 Miss. 786, 140 So. 220; Eagle Lumber Supply Co. v. DeWeese, 163 Miss. 602, 135 So. 490; Kelso et al. v. Robinson, 172 Miss. 828, 161 So. 135; Plant Flour Mills Co. v. Sanders Ellis, 172 Miss. 539, 157 So. 713; Izard v. Mikell, 173 Miss. 770, 163 So. 498; Barron v. Federal Land Bank, 182 Miss. 50, 180 So. 74.
The evidence offered by the appellees, over the objection of appellants, tending to show the intention of the parties as to the extension clause written in the timber deed at the time the said deed was negotiated and drawn was admissible. The appellants by their bill of complaint and by invoking the jurisdiction of the chancery court and praying that said clause be construed by said court shows that they treated the said clause as being ambiguous. This evidence was further made admissible by the fact that the appellant, the appellees and the court considered and treated the said language as to the amount to be paid for the extension as being ambiguous, and that such language is ambiguous and conflicting. The introduction of this evidence could have in no way been prejudicial to the rights of the appellants.
Appellees show to the court that the instrument in controversy in this suit is a deed to the timber in fee simple, subject to a condition subsequent, and not a contract or mere license to enter said lands and cut and remove said timber.
It is readily seen that the word "warrant" is used in the said instrument without restricted words, and this being true it was not necessary for the instrument to have expressed that the rights granted to the Wax Lumber Company, Inc, a Louisiana corporation, were also granted to its successors' or assigns.
Code of 1942, Sec. 843.
The word "warrant" as used in said timber deed without restrictive words granted the right to the Wax Lumber Company, a corporation, the power to sell the timber acquired in said timber deed subject to the conditions and stipulations contained in said deed.
Butterfield Lumber Co. v. Guy, 92 Miss. 361, 374, 46 So. 78; Nichols et al. v. Day, 128 Miss. 756, 91 So. 451; Sumter Lumber Co., Inc., v. Skipper, supra.
If the appellants desired to limit the title which they conveyed only to the Wax Lumber Company, Inc., a Louisiana corporation, they should have placed it in their deed, for if it had been the appellant's purpose to grant the Wax Lumber Company, Inc., a license merely to enter the land and cut the trees their deed or contract should have been drawn so as to express their intention. Appellants not having done so, this Court cannot now, at his instance, give to this deed or contract an intention which would deprive the appellees of their property, and which is contradictory of the terms of the deed made by the vendor, for this deed in controversy is a simple conveyance by warranty in fee simple of the hardwood timber, subject to a primary term of three years, to cut and remove the said timber with an additional period of not more than two years granted upon the payment of the sum of $400.00 in advance. The appellant cannot limit this deed to a mere license to enter the land and cut the timber as they have in their argument attempted to do, the appellees not claiming their rights in the timber by assignment, but by a conveyance duly and legally made to them by the Wax Lumber Company, Inc., a Louisiana corporation.
The fact that the said conveyance from the Wax Lumber Company, Inc., to the Wax Lumber Company, a partnership composed of Louis Wax and Mary Posey Wax, was not placed of record in Adams County, Mississippi, could in no way prejudice the appellants in this case.
Argued orally by Gerard Brandon, for appellant, and by Clay B. Tucker, for appellee.
The controlling issue for decision on this interlocutory appeal is whether or not the grantee in the timber deed involved herein obtained a one or two year period of extension beyond the primary period of three years originally contracted for when such grantee paid the sum of $400 to the grantors prior to the expiration of the primary period as a consideration for such extension.
The suit is one for the recovery of the value of the timber cut on the land in question after the expiration of four years, and the value of timber alleged to have been cut on other lands nearby not embraced in the timber deed and also the value of timber alleged to have been cut of less dimensions than provided for in the deed of conveyance.
The trial court found that under both the timber deed and a notation contained in the face of the $400 check the grantee obtained an extension of two years within which to cut and remove the timber instead of the one year contended for by the grantors; and therefore to save expense and delay incident to the taking of proof as to the value of the timber involved, and as to the damages claimed incident to the timber removal, this appeal was granted in order that we might first review its conclusion as to the period of such extension.
The timber deed was executed by, or on behalf of, the appellants on December 11, 1939, for a consideration of $4,000, all of which was paid within six months thereafter. As hereinbefore mentioned, the primary term for cutting and removing the timber was a period of three years, and the deed contained this additional provision:
"It is further agreed and understood that should Wax Lumber Company Inc. fail to remove the said timber within the said three years herein limited, it shall be granted an additional period of not more than two years thereafter provided it pay in advance the sum of Four Hundred Dollars, the first of such payments for additional time to be made on or before the 1st day of January 1943, and the second, if the additional year is desired, on or before January 1, 1944."
It is to be noted that if the word "annually" had been inserted after the words "Four Hundred Dollars" it would be readily apparent that the contention of the grantors that they would receive $800 if an extension of more than one year was desired would be well taken. On the other hand, if there had appeared after the words "Four Hundred Dollars" the words divided into two equal payments', there could be no doubt of the correctness of the contention of the grantee that it was to pay only $400 for "an additional period of not more than two years thereafter provided he pay in advance the sum of Four Hundred Dollars."
The grantors were permitted to testify without objection that aside from the wording of the foregoing provision for the extension, it was understood between the parties that the grantors were to get $400 for each additional year. And it is the contention of the grantors that this oral testimony did not vary, alter or contradict the terms of the timber deed. Thereupon Mr. Wax testified that it was mutually understood and agreed that the $400 provided for was to be payable in two installments of $200 each.
We are of the opinion that since that part of the quoted paragraph relating to the extension of time, and which reads "it shall be granted an additional period of not more than two years thereafter provided it pay in advance the sum of Four Hundred Dollars," is the dominant portion of the said provision and the remaining part thereof may be secondary as an explanation of how the $400 should be paid, the provision in question is somewhat ambiguous. This brings us to the consideration as to how the provision for an extension of time may have been construed by the subsequent acts and conduct of the parties.
On December 8, 1942, a check in the sum of $400 signed by the Wax Lumber Company, payable to the grantors H.B. Drane and others, and which was sent to the payees through the mail, contained a typewritten notation on the face thereof to the effect that "Endorsement is a receipt in full for the account as noted below." Then follows the words "Extension time remove timber to 12-11-44, Deerfield Plantation containing 1584 acres, more or less, Lots 1, 2, 3 and 4 Section 57 containing 177 acres, more or less, Township 5 North, Range 1 West."
This check was endorsed in due time by all of the grantors without objection to the notation contained thereon showing that the amount paid was for an extension "to 12-11-44," or for a period of two additional years.
If the grantors had objected to this notation after receiving the check, the grantee could have removed the timber during the year 1943. A substantial consideration had been paid for it, and the grantors should have known that it was unreasonable to suppose that the grantee was letting the year 1943 pass without making any effort to cut and remove the timber except upon the theory that the grantors had acquiesced in the grantee's interpretation of the contract to the effect that the $400 covered a two year extension as stated in the face of the check therefor.
It is not claimed that the grantors were induced not to read the typewritten notation in the face of the check, or that any representation by letter or otherwise was made by the grantee to mislead them.
Therefore we are of the opinion that the plea of accord and satisfaction was properly sustained whether the amount involved was liquidated or unliquidated, under the holding in the cases of Koenig v. Calcote et ux., 199 Miss. 435, 25 So.2d 763; McCubbins v. Morgan et al., 199 Miss. 153, 23 So.2d 926, 927; Continental Jewelry Co. v. Joseph, 140 Miss. 582, 105 So. 639; Gunter v. Henderson Molpus Co., 149 Miss. 603, 115 So. 720; Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 178 So. 914; Alliance Trust Co. v. Armstrong, 185 Miss. 148, 186 So. 633. The case must, therefore be affirmed and remanded in order that proof may be taken, if desired, on the issue as to whether or not the grantee or its successors in title, cut and removed any timber from lands other than those described in the timber deed, or any timber on said land of less dimension than that provided for, or both, and the amount and value thereof, and as to any other damages incident thereto.
It seems that the timber in question was cut and removed by the Wax Lumber Company, a copartnership composed of former stockholders of the grantee Wax Lumber Company, Inc., after the said corporation had been dissolved during the year 1941 — a fact unknown to the grantors at the time they cashed the check given by the copartnership of Wax Lumber Company. It is contended, therefore, by the grantors that the copartnership of Wax Lumber Company had no right to cut and remove said timber since the deed was not in favor of the Wax Lumber Company, Inc., its successors or assigns. But in answer to this contention, we are of the opinion that since the timber was conveyed to the corporation by warranty deed, there was conveyed the right under the five common law covenants of warranty for the corporation to sell the timber or to otherwise dispose of the same in its liquidation. The liquidator conveyed the timber pursuant to a resolution of the corporation to the said copartnership.
Affirmed and remanded.