\ 't 'e 278 BROWN V. KAMMERMAN. ' [168 ( I, • BROWN V. KAMMERMAN. • Opinion . delivered Mardi . 2, 1925. LOGS AND s LOGGING—SALE OF' TIMBER.—A contract whereby the • .owner of land 'agreed to sell the merchantable timber thereon, to be cut and removed by a certain date, the. consideration.being .certain work to be done by the grantee by a certain date, and upon his failure to do the work the 'grantee to pay' $4' Per acre, held to be a sale of 'timber, and not a mere contract oreinploy-'ment. 2 LOGS 'AND LOGGING—TITLE TO TIMBER curt-'-! --Where, timber WAS cut under. a contract of sale, and left on, the land by.,agreement of the owner, the title was in the purchaser, and the pwilei. the land had no title to convey to a purchaser of the land, though ' the latter had riO notiee of the sale of the tiMber. 3. EVIDENCK—MARKET VALUE . OF' 'TIMBER. In 'replevin fdr leg:s: or their. :value,. testimony as to their value at . the ' neares't market . was admissible upon proof that they had . no. Marlset yalue at the .place from which they were taken. , 4. ; REPLEVIN—MARKET VALUE OF CONVERTED TIMBER.—Where - the owner of timber was'prevented from receiving it by the purchaser 'of the'property on' Which the 'tiMber Was lying, under ' ' 'ownership, the market' value" at the 'time' , the action' (if rerileirin was brought,! and, lief at the time . defendant claimed , the timber was recoverable. 5. XRIAINECESSITY: OF : SPECIFIC OBJECTION TO INSTBUCTION. -74/1 repleyin for timber of its value ayi instruction that if the jury found for plaintiff they should find for him the value of the logs at the:time the suit was . brought,' though a's:2.f as fUll and'aecUrate as it might have been, was not inherently erroneous or prejudicial t.: in-the absence. of specific objection. Appeal from Clay Circuit Court, 'Western bi‘mtigei.; O. E. Keck, Judge ; :affirmed... C. T. Bloodworth, for appellant. Oliver ck: Oliver, for appellee. WOOD, J:: On the 14th of January;.1922, D. Hopson and W. A. Kammerthan entered into a , contract whereby Hopson agreed to sell to Kammerman all the merchant-able timber on the north.half of 'a .certain tract of land, the timber to be cut and removed by May 1, 1922. In consideration of the contract, Kammerman agreed to slash and cut all the timber before May 1, 1922, and he
ARK. j BROWN•V. .K4m MERMAN. 279 was. to, ha. y Q of , .the timber so . (i:ut, by, him. If :he ,failecl or, refused to, -cut :and slash, all, the: timber. ,hefore that date,...he': was to :pay.Hopson the :sunv of $4 per acre for the , timber 'on . the land. Kammerman entered upOn : the performance . .of. . the contract. and cut.:all the timber. Oil the: tradt, with the, ;exception , -of a few-trees, by the-•26th daY- Of April, 1922.7 •Kammérnian . fold Hopson, the other party tot' the Contract,..that; he IX/anted: to leave' sOme :of the idgs on the land until he Could , Conveniently get thern off;' and' :HOPson • Said,"' That . vvill ! be all right. ' 1 -After 1\fay . 1;'1922, Kanimerman left On theland certain CypreSS lOks" 4containing 11,575 feet. OctOber .25, 1922, •Hdp1 son.' -sold to'D A BroWri the' ' tract Of land On Whielf thd cypress logs cut by' Kammerman were situated. • After Broy; Tii: piirclih.Sed the land, • Kainthernian nndertOok remove the logs,-, and Brown objected, 'and Kammerman inStitufed this actibn ''in repléVino 'A.gainst 'Brown tO recOver the 16,0 or their 'value.' BrOWn denied That KaminerMan 'was . the. owner .and entiftled to the . possession . of. the , . logs. In • addition •:to the' abOVe, there W'ae testiniOny On behalf Of .KainnierMan tending to prove that there' . were 11,575- fe'et 'of cYPress los- on 'the' land, ! werth from fifteen -to 'eighteen 'dollars Per: thOnsand' r - feet: There, waS .• testimony • to' the effect that the: logs :Were dainaged; Ana that. foui' or fiVe, dollaxs ger thousand, if eet would be, a Teasonable , market wine tbe . Jogs pm' . the-,land at jhe , time Brown -,pUrchased, the _same' . from;Hopson.: - Brown: testified to the effect ,that, r. at.the, time he pnrchased . the: land from. Hop s-son, Hopson told, him that Kammerman's time-for cutt ting; the logs was : out, .and 'exhibited: to BrownJhe conr. tract he had-with Kammerman., ' Witness told ,Karnmert man-that : he could hav . e: all, the logs, that he had cut . and left ion. the land, except the cypress . . 411 . the logs except the:cypress .were. on the , land sta ',Witness , hauled.. the cypress .logs and , scaled them, !there being something over 1O,OOO.feet. At the time he, bought the .land, from Hopson- tbere, ,were ,35. or ;36 big trees standing . 0n• the
1 280 BROWN V. KAMMERMAN. [168 1 , / land, and there was 'a strip that lacked 20 or 30 feet of 1 being all slabs. Other witnesses corroborated Brown's testimony, to the effect that there was a strip left on the land that had not been slashed in the fall of 1922, about 20 or • 30 yards wide. . Hopson corroborated the testi-/ t mony of Kammerman to the effect that, after the time 1 for .the slashing of the timber under the_ contract had ? expired, he agreed with Xammerman to extend the time. 1 At the time he sold the land to Brown he showed Brown I ,I witness' contract with Kammerman and told him about the extension. Witness didn't know, when he sold the rii land to, Brown, that any logs were left there. , If Kam-I .1 merman said anything about logs being there, witness didn't remember it. When Brown was negotiating with 't the witness to buy, the land, he asked witness if he was j buying everything that was there, and witness told him, t ., "Yes." -At the time Brown bought the land witness didn't consider his contract with Kammerman had anything to do with it, except to show Brown the time tha it expired. ' Hopson further, testified that, at the _ time he sold ihe land to Brown, he didn't claim title to the logs ? that had been cut on the d lan . , - ,. Kammerman testified in rebuttal that Hopson's foreman inspected the work witness had done in slashing the land, and told witness that it was all right. / , ? • The court told the jiiry, in its instruction No. 4, that "if you find for the' plaintiff, you find for him the value of the cypress logs at the time the ilia was brought." i The appellant duly excepted to the giving of this instruction. The defendant asked the court to instruct the 1 ) jury to the effect that, if they found for the plaintiff, f they should find for him in such sum as they believed I 1 from a preponderance of the evidence was the fair and reasonable market value of the logs at the time the claim was made to them by the defendant, and that the reason-1 able market value would mean the value at the time of 'the taking as they lay on the ground where they were claimed by the defendant, and didn't mean the value of 'i
ARK.] BROWN v. KAMMERMAN. 281 the lumber which might be cut from the logs. The court refused the defendant's prayer, to . which ruling the defendant duly excepted. The jury returned a verdict in favor of the plaintiff below in the sum of $100. Judgment was entered in plaintiff's favor against the defendant for that sum, from which is this'appeal. 1." The appellant contends that the Contract under which the appellee claims title to the logs in controversy did not evidence a sale of timber to the appellee, but was a mere contract of employment, and therefore appellee had no title to the logs and no right to remove the same after May 1, 1922. We do not agree with learned . counsel in this construction of the contract. The contra'ct-expressly provides : "Hopson has agreed to sell. to.the said ..Kammerman all the merchantable timber on the north half of SW 1 4, section 4; T. 21: N, R. 4 E., * * such , timber to be cut and removed by May 1, 1922." True, the contract specified that the consideration . for the 'sale was certain work to be performed . by . Kammer-man by a certain day, and, in the event the work was npt performed within_ that time, then the grantee, Kammer- man, could pay to the grantor, Hopson,. as an alternative consideration, the sum of $4 per acre for the timber on or before the date mentioned. The undisputed evidence in the case .shows that the appellee, the grantee, had paid the 'purchase price, or consideration, for the timber in controversy to his grantor, Hopson, by his .labor, and that -Hopson, the grantor, had accepted this consideration before , he sold the land to the appellant Brown. • The timber in con= troversy, as we understand the testimony, was • felled by the appellee before May 1, 1922, but was not removed until after that time. But the grantor, Hopson, agreed with the appellee to extend the time so far as the removal of the timber was concerned. Thus the contract for the sale and purchase of the timber between the grantor and the grantee was completed before the land on,which the timber was situated was sold to the appellant Brown.
0 9 82 BROWN V. KAMMERALiN. [168 At the time Hopson sold the land to Iirown,-HePson had no title to the tiMber in controversy Which he cbuld.con: vey to•Brown. At that time the timber had been felled by the appellee. • It was personal property, and appellee had paid the consideration, which had been accepted by the vendor of the timber, and an extension of 'time granted by him to the appellee to remove the timber , after May 1, 1922.. • In Indiana & Arkansas Mfg. Co. v. Eldridge, 89 Ark: 361-367, we said: . ."In this case the contract of sale must be construed as an entire instrument, and :we .think that . .the, words 'cut and remove ! in thu conneetion which they are used . , mean a seVerance frotn the seil: necessarily follows that, when 'Severed from the soil jby the grantee, the timber becomes its personal 'property, and subject to the laW Cencerning personal proPerty.P,. • 'In Griffin v. Anderson-Tully Co., 91 Ark.. .292, we held (quoting syllabi's) : . "Under a contract -for 'the sale of growing timber, whereby the grantee is 'authorized to cut and . remove tiinber ivithuii a:certain period of time, the title to tiniber cut by the • grantee 'within' such period, but not removed from the land, p asSes ' to' mich grantee, together with a right for ;a reasonable tithe thereafter to remove the timberl" ' • . Here, as we have seen, the : time •• was .extended by mutual• agreement 'between the 'grantor' and grantee-for the removal of the timber beyond the time' specified in the written contract. Under -the doctrine of , 'the . above cases, the title to the tiniber in' Controversy Wa's nnques-tionably in the appellee. • ?". 2. : The appellant next' contends that the court erred in the admission of testimony and in its rUlings . on prayers for instructions concerning the Value Of the logs in controversy. The testimony on behalf of the appel-lee was to the effect that the logs in controversy had no market value at. their location when re p levied. But there was testimony tending to show that they'had a market. value when removed from the lands and taken to
283. the nearest market; to be sawed into lumber. The court did.not, err in permitting the testimony • as to such market value. In Clear Creek Oil . & Gas Co. v: BuShmaiOr, 165 Ark. 303, 'we said: . "If there be no market value at the place deliVery, the ,value of the goods or other product should • be . determined at the nearest place where •they • have ,a market value, deducting the extra eXpense of &El/el : ink them there. The prices prevailing at the near-: est Place Wheke . the i PrOduct can be sold, less transportation -and .distributing charges, show the .value of such product at the place of delivery as nearly as it is possible to show such value." As the appellant , refused to allow the 'appellee 'to remove his , logs, and thuS compelled 'the apPellee to institute suit against him, the court-did not err in instructing • the jury that they should find for the appellee the'value of the logs at the time of the inStitution of the Snit, and did not err in reffiking the Prayer of appellant for instruction on the issue of value. • While instruCtion No: 4 given by the &Rift wa's not as full and accurate as it should have been, , yet it Wag not inherently erroneous, and there was no 'specific objection niade 'to it. In the absence of such objection, there was no prejudicial error in giving it. In view Of the•undisputed evidence on the subject of 'value, it Could not have misled the jury. •There was ample téstiniOnf tci sustain' the amount of the verdict aS fixed by the jurY.t W6 find no reversible error in the r eeord, and the' judgment is therefore .affirnied:
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.