Opinion
April 11, 1949.
1. Contracts — breach — damages — loss of profits.
When in a suit for loss of profits for alleged breach of contract, the evidence offered is purely speculative and does not show any such loss with any reasonable degree of certainty, an objection to it is properly sustained.
2. Frauds, statute of — oral contract sale standing timber — revocable license.
An oral contract of sale of standing timber is within the statute of frauds and is good only as a license which authorizes an entry upon the land and the cutting and removal of the timber until revoked, the license being revocable at the will of the grantor and is revoked as to any uncut timber, when as one means of revocation, the grantor makes a valid sale of it to a third party.
3. License to cut standing timber — no right of action on account of revocation.
The revocation of the license implied in an oral sale of standing timber leaves no surviving right of action in the grantee against the grantor as to any uncut timber, nor has the grantee any right of action against any third person on account of the revocation when the latter made no representation that he owned the timber or had any right therein and entered into no contractual obligation against a revocation.
Headnotes as approved by Montgomery, J.
APPEAL from the chancery court of Wilkinson County, R.W. CUTRER, Chancellor.
Clay B. Tucker, for appellant.
We find that the appellee, Adeline H. Rosenblatt, entered into these discussions fully with appellant and her husband, appellee, W.L.F. Rosenblatt, and in every way together with her husband encouraged and insisted upon and acquiesced into entering into this agreement with the appellant.
That the appellee, Adeline H. Rosenblatt, because of her acquiescence and silence and due to the fact that she entered actively into the conversations and negotiations leading up to the consummation of the contract by and between appellant and appellee, W.L.F. Rosenblatt, is estopped from now denying that she agreed to accept the current price per thousand feet for all timber owned by her and from denying that she accepted the clause in the contract that no deals are to be made, with reference to the agreements contained in the contract, of any consequences without the knowledge and mutual consent of both parties.
American Jurisprudence, Vol. 19, Section 62, at page 678 lays down the rule of law governing the facts in this case as to Adeline H. Rosenblatt as follows: "The rule is well recognized that where a party with full knowledge, or with sufficient notice or means of knowledge, of his rights and of all the material facts remains inactive for a considerable time or abstains from impeaching a contract or transaction, or freely does what amounts to a recognition thereof as existing, or acts in a manner inconsistent with its repudiation and so as to interfere with the relation and situation of the parties, so that the other party is induced to suppose that it is recognized, this amounts to acquiescence and the transaction, although originally impeachable becomes unimpeachable." Ford Motor Co. v. K.W. Ignition Co. (C.C.A. 7th) 278 F. 373, citing R.C.L.; Connelly v. Special Road Bridge Dist. 99 Fla. 456, 126 So. 794, 71 A.L.R. 923; Chicago N.W.R. Co. v. West Chicago Park, 151 Ill. 204, 37 N.E. 1079, 25 L.R.A. 300; Carlson v. Smith 213 Iowa 231, 236 N.W. 387, 80 A.L.R. 186; Grand Lodge, A.O.U.W. v. Graham, 96 Iowa 592, 65 N.W. 837, 31 L.R.A. 133; Rothschild v. Title Guarantee T. Co., 204 N.Y. 458, 41 L.R.A. (N.S.) 740, 97 N.E. 879; Kennedy's Estate, 321 Pa. 225, 183 A. 798, citing R.C.L.; Re Shoemaker, 277 Pa. 424, 121 A. 510, citing R.C.L.; Philadelphia R. Coal I. Co. v. Schmidt, 254 Pa. 351, 98 A. 964, citing R.C.L.
The acquiescence of Adeline H. Rosenblatt, to the cutting and manufacturing of her timber for the current price per thousand feet, by W.L. Rowan and her husband, appellee, W.L.F. Rosenblatt, can not be contradicted here for the record shows that she accepted the Five ($5.00) Dollars per month rent for a mill site and the current price per thousand feet for all of her timber cut and manufactured by said parties from the 14th day of September, 1945, and having accepted the benefits provided under the agreement between appellant and appellee, W.L.F. Rosenblatt, she is now estopped from asserting her legal rights and escaping the consequences thereof by pleading the statute of frauds to the injury of appellant. West v. West, 131 Miss. 880, 95 So. 739, 29 A.L.R. 226; Barrier v. Kelly, 82 Miss. 233, 30 So. 974, 62 A.L.R. 421.
The appellee, Adeline H. Rosenblatt, in February, 1945, during the negotiations of appellant and appellee, W.L.F. Rosenblatt, in her home and in her presence, knew that appellant and her husband were contemplating the entering of an agreement to cut and manufacture all of the timber into lumber then growing on the lands owned by her, and knew that appellant was relying upon the fact that all of her timber was available for said operations, and knew that the cutting and manufacturing of her timber was the sole inducement held out to appellant to enter into such agreement, and yet she did not protest the entering of a contract for the cutting of her timber, but actually took part in the negotiations for the consumation of the agreement.
Again on the 14th day of May, 1945 we find Mrs Rosenblatt reading the written agreement by and between appellant and appellee, W.L.F. Rosenblatt, as shown by said letter Exhibit No. 9 to bill as shown on pages 26 and 27 of the Record, and in testimony of appellant on page 90 of the Record, wherein she was to receive Five ($5.00) Dollars per month for having the mill on her land the current price for her timber per thousand feet, and acquiescing in said contract.
Therefore, Mrs. Rosenblatt now must be held to be estopped to deny that all of her timber was to be cut and manufactured into lumber by appellant and appellee, W.L.F. Rosenblatt, as on these two occasions it was her duty to speak, as she well knew appellant was relying thereon to his injury, for the cutting and manufacturing of no other timber ever entered the discussions, except for an inquiry by appellant, which was answered, "We have plenty of timber". Staton v. Bryant, 55 Miss. 261; Straus Bros. v. Denton, 140 Miss. 745, 106 So. 257; Kelso v. Robinson, 172 Miss. 828, 161 So. 135.
In Kelso v. Robinson, supra, this court said: "Estoppel may arise from misleading silence or passive conduct joined with a duty to speak. The doctrine lies at the foundation of morals; it is based on equity and good conscience. Under its application fraud is suppressed; honest and fair dealing is promoted. One of the merits of equitable estoppel is that it reaches the ends of justice by a direct route, and one of the established rules of the doctrine is that, if a person knowingly suffers another to expend money on land under an erroneous opinion of title, although he does it passively by looking on without making known his claim, he shall not afterwards be permitted to enforce his legal right against such other."
The damages sought in this case is the loss of profits in the cutting and manufacture of the timber on the lands of appellee, Adeline H. Rosenblatt, and the general rule is laid down in the case of Montgomery Ward Co. v. Hutchinson, 173 Miss. 701, 707, 159 So. 862, 863, as follows: "The next contention of appellant is that the damages allowed by way of lost profits are not recoverable because uncertain and speculative; and appellant offers suggesttions of several possibilities or contingencies which might have happened to defeat any profits. Under our jurisprudence the rule as to uncertain or speculative damages does not apply to uncertainty as to the amount of the profits which would have been derived, but to uncertainties or speculation as to whether (1) the loss of profits was the result of the wrong, and (2) whether any such profits would have been derived at all. Delta Table Chair Co. v. Railroad Co., 105 Miss. 861, 63 So. 272. A party who has broken his contract cannot escape liability because of the difficulty in finding a perfect measure of damages. It is enough that the evidence furnished sufficient data for an approximate estimate of the amount of the damages. Adams Mach. Co. v. South State Lumber Co., 2 Ala. App. 471, 56 So. 826, 830."
This rule was again approved in Mississippi Power Light Co. v. Pitts, 181 Miss. 344, 361, 179 So. 363.
Maxwell Bramlette, for appellees.
Appellant insists that appellee, Adeline H. Rosenblatt, is now estopped from denying that she is bound by the agreement under date of May, 14, 1945, by and between appellant and appellee, W.L.F. Rosenblatt. Reason given for such estoppel of appellee, Adeline H. Rosenblatt, are that she participated in conversations with appellant, W.L. Rowan, and appellee, W.L.F. Rosenblatt, and that she failed to object to the contract between the appellant and appellee, W.L.F. Rosenblatt, and further, that she acquiesced in the cutting and manufacturing of some of her timber for the current price per thousand feet by the said W.L. Rowan and appellee, W.L.F. Rosenblatt.
For the sake of argument, admitting appellee, Adeline H. Rosenblatt, did accept the sum of $10.00 per thousand feet for a small specified portion of her timber, still, she is not estopped from now denying that she agreed to accept the current price per thousand feet for all of the timber owned by her. I respectfully submit that the cases of Howie v. Swaggart, 142 Miss. 409, and particularly on page 415, and the case of Fisher v. Kuhn, 54 Miss. 480, completely refute such contention on the part of appellant and announce the well settled rule of this state that acceptance of a part of the purchase money does not give validity to a parol contract for the sale of land nor estop the acceptor from refusing to carry out the contract. Further, it is the well settled doctrine in this state that part performance will not take a parol sale of lands out of the statute of frauds; no objections of that character will be engrafted on the statute. It having been established by appellant's own testimony that the sole contract that he had with appellee, Adeline H. Rosenblatt, was a verbal one, and it having been established that the sale of standing timber is within the statute of frauds, I respectfully submit that appellant's contention that Adeline H. Rosenblatt is now estopped from denying that she agreed to accept the current price per thousand feet for all her timber is without foundation and that such contention meets headlong the holdings of this honorable court in the cases of Fisher v. Kuhn, supra; Howie v. Swaggart, supra; and Box v. Stanford, 13 Smedes Marshall, 93, 51 Am. Decennials 142. It is further respectfully submitted that the citation of appellant from American Jurisprudence and that the number of authorities from other states substantiating the same are not applicable in this case and, if so, that such enunciation of the rule runs headlong into the holdings of this court in the cases above cited.
The case of West v. West, 131 Miss. 880, 95 So. 739, 29 A.L.R. 226, cited by appellant in substantiation of his position that Adeline H. Rosenblatt is now estopped is not in point. In that case, West, having probated a will, having qualified as executor thereunder, and having administered the estate in accordance with its provisions, was pronounced estopped to assert the invalidity of the devise to him. In other words, having recognized the instrument probated by him as a will and having done all things in accordance with the terms and provisions of the will, he could not then claim that the will or the instrument was invalid. I respectfully submit that the case at bar is altogether different and has no bearing whatsoever on the case of West v. West, supra, or any relation whatsoever thereto. The case of Barrier v. Kelley, 82 Miss. 233, 30 So. 974, 62 A.L.R. 421, likewise involves the principle of equitable election which in no wise applies to this case. In that case the court held that the appellant, having made his election in accordance with a certain instrument of writing and not against it, that he could not after having made the election to abide by its terms now repudiate the same. Are we to understand from appellant's assertion and such authority that appellee, here, Adeline H. Rosenblatt, is to be bereft of all protection of the statute of frauds and especially of such protection that the statute of frauds designs and creates and gives validity to.
The case of Day v. McCandless, 167 Miss. 832, 142 So. 486, holds that estoppel operates only in favor of one who, relying on another's act, representation or silence, so changes his situation that injury would result if the truth were shown.
It is respectfully submitted that nowhere at any time did either of the appellees, Adeline H. Rosenblatt and W.L.F. Rosenblatt. attempt to deceive appellant in any way whatsoever. Appellant was fully informed that title to any and all timber or land was owned by Adeline H. Roseblatt, and further, appellant by his own testimony, positively stated that he knew title to any and all timber was in Adeline H. Rosenblatt and that he had no contract whatsoever other than a verbal one, if any at all. It is therefore, respectfully submitted that the doctrine of equitable estoppel does not operate in this case for appellant was fully advised at all times as to what the situation as to title of timber was.
Further, equity will not, on mere ground of another's silence, relieve one perfectly acquainted with his rights, or having means of becoming so, Roberts v. Bookout, 162 Miss. 676, 139 So. 175. In the case at bar, the appellant was fully acquainted with his rights since he knew that title to any and all timber or land was in Adeline H. Rosenblatt and since he knew that he had no contract whatsoever with her, except allegedly a verbal one. Appellant was careful enough to enter into a written contract with appellee, W.L.F. Rosenblatt, but he did not, by his own admission, enter into any contract whatsoever with appellee, Adeline H. Rosenblatt, and, therefore, he cannot now be heard to say that Adeline H. Rosenblatt is estopped to deny that she has the protection which the law of this state gives her.
One of the reasons given in appellee's, Adeline H. Rosenblatt's, motion for dismissal of the bill was that the damages, by appellant's admission, were purely speculative and that complainant had wholly failed to meet the burden of proof imposed upon him to establish actual damages and such was the principal reason for sustaining the motion of W.L.F. Rosenblatt to dismiss the bill of complaint and for the further reason that an accounting had been had between W.L.F. Rosenblatt and W.L. Rowan from which no appeal was taken, and to which no objection was made and as shown by decree of this court dated March 19, 1947.
It is to be remembered that this is a suit seeking recovery of damages for the sale of timber which appellant alleged to have been under contract to him for the privilege of cutting.
Appellant cites the case of Montgomery Ward and Company v. Hutchinson, 173 Miss. 701, 707, 159 So. 862, 863, wherein it is stated that "under our judisprudence the rule as to uncertain or speculative damages does not apply to uncertainty as to the amount of the profits which would have been derived, but to uncertainties or speculations as to whether (1) the loss or profits was the result of the wrong, and (2) whether any such profits would have been derived at all." It is respectfully submitted that the record in this case, discloses that there was uncertainty or speculation as to whether the loss of profits in the case at bar is directly attributable to the sale of the tract of Adeline H. Rosenblatt's timber to Wax Lumber Company.
In meeting the second test prescribed by the case of Montgomery Ward and Company v. Hutchinson, supra, I respectfully refer this honorable court to page 94 of the Record wherein the testimony of appellant appears as follows:
"By the court: Q. Mr. Rowan, do you know whether you would have made a profit on the low land operation and if so, how much: A. No., Judge, I do not know. That would be speculative. By the court: Yes, that is speculative."
It might be noted here that an accounting was had as between appellant, W.L. Rowan, and appellee, W.L.F. Rosenblatt, and that the account was stated by a special master. The decree rendered by the master appears on Page 55 of the Record and from this accounting no appeal whatsoever was taken and no objection whatsoever was made to the account as rendered by the special master by the appellant, W.L. Rowan.
This is a suit brought by W.L. Rowan against W.L.F. Rosenblatt and his wife, Adeline H. Rosenblatt, for the recovery of a judgment in the amount of $15,000 representing the loss of prospective profits in the operation of a sawmill, and also for an accounting of the actual profits resulting from the operation of said mill.
It appears from the evidence that on January 23, 1945, appellant wrote a letter addressed to the Post Master at Ft. Adams, Mississippi, seeking to purchase a small, idle sawmill that he had been informed was for sale at Fort Adams, Mississippi. This letter was answered by Mr. Rosenblatt, and thereafter considerable correspondence was had between Mr. Rosenblatt and Mr. Rowan. It seems that Mr. Rosenblatt was the owner of a small tractor sawmill which he had been using for the purpose of cutting lumber for his own use from the timber located on the plantations owned by his wife, Adeline H. Rosenblatt. This correspondence was consummated by a personal interview between Mr. Rowan and Mr. Rosenblatt, and this personal interview finally culminated in the setting up of a partnership agreement in the form of a letter, which was signed by Mr. Rowan and accepted by Mr. Rosenblatt. At the time of the execution of this instrument, there is no dispute in the evidence regarding the ownership of the timber. Mr. Rowan admitted upon the witness stand that he did not at any time have any writing or exchange of writing between him and Mrs. Rosenblatt regarding the sale of the timber on her lands, either to the proposed partnership or to himself as an individual, and at the time of the execution of the partnership agreement, he knew that the title to the timber was in her name, and that the only thing he had from Mrs. Rosenblatt was a verbal agreement that the timber on her lands could be cut by the partnership he had formed with Mr. Rosenblatt, she to be paid the current market price for the timber so cut by the said partnership. The partnership agreement itself provided the following: "You and I agree to pay Mrs. W.L.F. Rosenblatt, who owns no interest in this business, five dollars ($5.00) per month rent for having the mill on her land (while on it), and also pay her the current price for her timber per thousand feet." Mr. Rowan repaired the portable sawmill and put it in good operating condition, and Mr Rosenblatt provided the necessary funds for this purpose. The mill then started operation, and at that time the swamp lands on which most of the desirable timber was located were covered with water, hence the mill operations were confined to timber logged from the hill lands where the logging was difficult and expensive. Mrs. Rosenblatt owned approximately three million feet of timber, and no doubt Mr. Rowan was expecting to cut a large portion, if not all, of this timber by the operation of the portable mill under the partnership.
About the time the water had receded sufficiently from the bottom lands to enable the partnership to log the timber therefrom, Mr. Rowan made a trip to New Orleans and to Baton Rouge and there procured orders for certain cypress lumber that he proposed to manufacture from the timber located on the lowlands. On his return to Fort Adams, he found that Mrs. Rosenblatt had sold some 247,498 feet of timber to the Wax Lumber Company, which sale embraced the most of the lands containing the cypress from which he proposed to fill the orders he had taken in New Orleans and Baton Rouge. Thereupon, he withdrew from the partnership, and shortly thereafter brought suit in the Chancery Court of Wilkinson County, Mississippi, for the recovery of $15,000 from the defendants, which amount he alleges he would have earned had the defendants not breached the contract by the sale of the timber to the Wax Lumber Company; and also he sued for an accounting on the actual earnings of the mill during its operations from May 14, 1945, to October 1, 1945. There was an answer on the part of W.L.F. Rosenblatt denying the allegations of the bill, and a separate answer on the part of Adeline H. Rosenblatt which also denied all of the allegations of the bill. The court proceeded to appoint a Master to state an account between the parties involving the actual operations of the mill under the partnership agreement, and the Master filed his report on March 19, 1947, and a decree was entered on that date showing $162.19 due to W.L. Rowan and $155.50 due to W.L.F. Rosenblatt; and ordered the firm to pay said respective amounts to said respective parties. Thereafter, the cause came on for hearing at the December 1947 term of the court on its merits, involving the recovery of the $15,000 alleged to be the amount the appellant would have earned had the defendants not breached the contract by the sale of the timber to the Wax Lumber Company, all as alleged in his original bill of complaint. Testimony was taken, and at the conclusion of the hearing the court entered a decree dismissing the bill of complaint, both as against Mrs. Adeline H. Rosenblatt and as against W.L.F. Rosenblatt. From this decree, the appellant appeals, and assigns four grounds of error.
It is first assigned as error that the lower court erred in sustaining the objection of the defendants to evidence of damages for the loss of profits in the operation of the sawmill by and between appellant and W.L.F. Rosenblatt, appellee, on the ground that such damages were speculative. When Mr. Rowan was on the witness stand, the following testimony was taken:
"Q. Under that contract, had you been permitted to cut the timber in the lowland, what profit if any, would you have made on that timber?
"By Mr. Bramlett: I object to that, your honor.
"By the Court: I sustain the objection.
"Q. Would you have made a profit on that in the lowland? A. Yes, sir.
"By Mr. Bramlett: I object to that.
"By the Court: Mr. Rowan, do you know whether you would have made a profit on the lowland operation and if so, how much? A. No, Judge, I do not know. That would be speculative.
"By the Court: Yes, that is speculative."
(Hn 1) The court below was manifestly correct in sustaining the defendants' objection to the complainant's evidence of damages by way of loss of profits because the damage, if any, was purely speculative and was not shown by the testimony with any reasonable degree of certainty, and in addition it was properly sustained for the reasons herafter shown under assignments of error numbers two and three.
The second assignment of error is that "the lower court erred in granting the motion of the appellee, Adeline H. Rosenblatt, to return a decree in this cause, and in dismissing the bill of complaint as to said appellee."
It is undisputed that Adeline H. Rosenblatt was not a member of the partnership composed of her husband, W.L.F. Rosenblatt, and the appellant, W.L. Rowan, and the article of partnership affirmatively shows that she had "no interest in this business." It is also admitted that the partnership held no written contract covering the timber belonging to Mrs. Rosenblatt, and the only evidence tending to establish any oral agreement on the part of Mrs. Rosenblatt for the cutting of her timber is the testimony that when the articles of partnership were signed that Mr. Rowan signed, and then the articles were read by Mr. and Mrs. Rosenblatt and that Mrs. Rosenblatt suggested that her son read them before they were signed, to which Mr. Rosenblatt answered that such was not necessary, and proceeded to sign the articles of partnership. There is no testimony in the record showing that the timber lands of Mrs. Rosenblatt were described in any of the correspondence between her husband and Rowan, nor is there any writing in evidence signed by Mrs. Rosenblatt, herself. (Hn 2) If there be any contract for the sale of Mrs. Rosenblatt's timber, it is of necessity an oral contract for the sale of such timber. This Court held in the cases of Walton v. Lowrey, 74 Miss. 484, 485, 21 So. 243; Queen City Hoop Company v. Barnett, 127 Miss. 66, 89 So. 819; Harrell v. Miller, 35 Miss. 700, 72 Am.Dec. 154; Dixie Pine Products Company v. Breland, Miss., 39 So.2d 265, and not yet reported (in State reports), that an oral contract for the sale of timber falls with the statute of frauds and that an oral sale of growing timber is merely a license which authorizes an entry upon the land and the cutting and removal of timber thereon, but that such license is revocable at the will of the seller. We held in Dixie Pine Products Company v. Breland, supra, that the title to timber felled, subject to parol agreement, vests in the purchaser, but that such parol agreement is revocable as to the uncut timber at the will of the seller. Here, none of the timber on the lowlands had been cut, and there was no attempt to revoke the oral agreement as to any lands whereon the timber had been cut. The revocation here was before the cutting of the timber on the lands sold to the Wax Lumber Company, and under the rule announced in the cases above cited, Mrs. Rosenblatt, even if she had made an oral agreement to sell all of the timber on her lands to the partnership above mentioned, neverthless she had an unqualified right to revoke this oral agreement at will as to any uncut timber, and unquestionably had the right under the law to revoke it as to the land she sold to the Wax Lumber Company. (Hn 3) For this reason, no cause of action was shown to exist as against Mrs. Rosenblatt, and the court was correct in dismissing the bill of complaint as to her.
The third assignment of error is that the lower court erred in sustaining the motion of the appellee, W.L.F. Rosenblatt, to exclude the evidence offered by appellant, and entering a decree in this cause dismissing the bill of complaint as to said defendant, W.L.F. Rosenblatt.
There is no evidence in this record showing any representation on the part of W.L.F. Rosenblatt that he owned any of the timber on the lands in question, or that he had any right to sell the same. On the other hand, it appears affirmatively that Rowan at all times knew that the timber belonged to Mrs. Rosenblatt. Hence, there could be no breach of contract by W.L.F. Rosenblatt when Mrs. Rosenblatt sold a portion of her timber to the Wax Lumber Company. The accounting for the actual operations of the sawmill had already been had, and an interlocutory decree had already been entered showing the amount due to each of the partners under the accounting, and neither partner filed any objection or registered any protest to the correctness of this statement of the account. Hence, the lower court was manifestly correct in dismissing the bill of complaint as to the defendant, W.L.F. Rosenblatt.
The fourth assignment of error is that the decree dismissing the bill of complaint is contrary to the law and the evidence. This assignment of error is without foundation. The decree of the lower court is supported by the evidence, and the law controlling this case, and the lower court was manifestly correct in entering the decree as entered.
We find no error in this record, and the decree of the lower court will be affirmed.
Affirmed.