Harris v. Free

WALKEN, P. J. The claims asserted by the plaintiff (appellant here) were dependent upon the terms of a conveyance executed to the defendants by her and her husband, who was originally joined with her as a party plaintiff in the suit. That conveyance bore date January 1, 1909, embraced, with an exception not material to be stated, all timber standing on a described tract of land, provided that the timber on a designated part of the tract, referred to as the “new ground,” should be removed on or before the 15th day of March, 1909, that the timber on another designated part of the land, referred to as the “ridge tract,” should be removed by the 1st day of April, 1909, that the timber on still another — 117 — designated part of the land, referred to as the “cemetery tract,” should be removed on or before the 1st day of February, 1910, and that the remainder of the timber should be removed on or before the 1st day of January, 1912. It. also authorized the grantees to erect and maintain a sawmill on the land, and contained the following provisions: “Provided that the said sawmill shall be located either at the Walter Burks house or at the old Tab Brown sawmill site, as the parties of the second part (the grantees) may elect; and, provided, that if they shall elect to locate them at the Walter Burks house they shall add to said house at their own expense two rooms, one of which shall be sixteen feet square, and the other shall be a shed room ten by sixteen feet, and the said house shall be at the disposal of Mr. J. J. Martin. It is a condition of this deed, however, that at the termination of the said periods hereinabove annexed to the tracts that are described, respectively, all rights granted hereunder to the parties of the second part to the said tracts respectively utterly cease and determine, and the title to all said timber which shall not be removed from said respective portions of said land at said times so specified respectively shall revert to and vest in the said parties of the first part.” The complaint contained seven counts. The first, second, third, and fifth counts were based upon alleged breaches of the stipulations as to the periods within which timber should be removed. The fourth count alleged the location by the defendants of their sawmill at the Walter Burks house, and their failure to build the rooms stipulated for in the deed in that event. The sixth and seventh counts are in trespass and trover, respectively, for the cutting and conversion of timber after the expiration of time limits fixed by the deed. — 118 — The plaintiffs undertook to sustain by evidence claims based upon the cutting and removal by the defendants of timber from the parts of the land above specifically referred to after the expiration of the respective periods within which, under the terms of the conveyance, this was authorized to be done. The terms of the conveyance plainly set time limits upon the rights of the defendants in that regard. The defendants sought to show that their rights in this respect were modified and enlarged, or that the plaintiffs were estopped to insist upon the enforcement of them, as the result of certain conduct and declarations of the appellant’s husband, S. B. Harris, who, as above stated, was originally a party plaintiff in the suit. It developed in the course of the trial that the land mentioned in the deed Avas the property of Mrs. Harris, the appellant. If it was only by the deed that her right to the timber on the designated tracts was affected, it is plain that, as to the timber left standing thereon at the expiration of the respective periods named, her title was as complete as if the deed had not been made, and that the defendants subjected themselves to liability to her as the OAvner of the land for timber thereafter cut and removed from those tracts. A ground upon which the defendants claimed exemption from such liability is indicated by the written charge given at their instance, which is referred to in the seventieth assignment of error. That charge was improperly given, because it assumed the existence of evidence tending to prove that S. B. Harris was the agent of his wife, having authority to bind her by his consent that the timber be cut after the dates stated in the conveyance. We find no such evidence in the record. Other rulings of the court, not necessary to be enumerated, seem to have been induced - by the assumption — 119 — of the existence of such evidence. In reference to those rulings, it is enough, to say that under the evidence in the case, that tending to show the consent of S. B. Harris (who at the time when this evidence wrns offered w7as a party plaintiff) to the cutting and removal of timber after the dates specified in the deed, was not entitled to be given the effect of changing or impairing the rights of the appellant as indicated by the deed, considered in connection with the evidence to the effect that she wras the sole owner of the land. The obligation of the defendants to make the stipulated addition to the Walter Burks house was incurred when they elected to locate their mill at that site. The instrument does not specify any date or time for the performance of that obligation. In such case the law implies an agreement to perform vdthin a reasonable time. — Lane v. May & Thomas Hdw. Co., 121 Ala. 296, 25 South. 809. “What is a reasonable time is sometimes a question of fact and sometimes a question of law. When it depends upon facts extrinsic to the contract, which are matters of dispute, it is a question of fact; wdien it depends upon a construction of a contract in writing, or when it depends upon undisputed extrinsic facts, it is a matter of law7.” — Cotton et al. v. Cotton, 75 Ala. 345. It w7as said in the opinion in the case of Drake v. Goree, 22 Ala. 409, that “the question of reasonable time, applied either to the delivery of articles or the doing of work, is, generally speaking, one of fact, and to be determined by the jury under all the circumstances which surrounded the case at the time the contract was made.” We are not of opinion that the evidence in this case was such as to justify the court in determining, as a matter of law7, that, when the suit w7as brought in March, 1911, a reasonable time for making the stipulated addition to the house mentioned had — 120 — not passed. The evidence without dispute showed that the defendants located their sawmill and began to build it a few days after the delivery of the deed; that the mill was burned in 1910; and that the stipulated work on the house mentioned had not been done at the time the suit was brought. There was no evidence in explanation of the defendants’ delay in the matter for such a length of time. We are of opinion that the question of reasonable time was one for the determination of the jury in the light of the circumstances surrounding the parties at the time the deed was made; one of these circumstances being that Mr. J. J. Martin, who was to have the disposition of the house to be added to, was the tenant who was to have the use of the land, subject to the rights acquired by the defendants. Several rulings of the court were inconsistent with the conclusion just stated. The part of the oral charge which was excepted to was to the effect that under the evidence the jury could not find for the plaintiff on the fourth count of the complaint, for the reason that under the deed the defendants had until January, 1912, to make the addition to the house, and that, so far as it concerned that matter, the suit was prematurely brought. By this ruling the deed was construed as giving the defendants the same time within which to make the addition to the house in question as-was allowed to them for the operation of their sawmill on the land, and for removing timber from the parts of it not affected by special restrictions in that regard. We find nothing in the terms of the deed to warrant this construction. Its provisions which make mention of a period extending to January, 1912, do not purport to set the time for the performance by the defendants of their obligation to make the addition to the house. As above stated, the instrument does not fix a — 121 — date for the performance of that obligation. The provision for the house as added to being at the disposal of J. J. Martin, considered in the light of the fact, brought out in the evidence, that Martin was the plaintiff’s tenant, suggests that it could hardly have been in the contemplation of the parties that, no matter how soon the defendants, by locating their mill, incurred the obligation to make the addition to the house, yet they could not be chargeable for.a default in the performance of that obligation until after the period during which it was then understood that Martin was to be the tenant. Reversed and remanded.