Smith v. Dierks Lumber & Coal Co.

HART, J., (after stating the facts). The first question raised by the appeal is the construction to be given to the timber deed in question. It will be remembered that the deed contains a clause that the. company may cut and remove the timber at its convenience. (1) In the case of Fletcher v. Lyon, 93 Ark. 5, the court held that a timber deed which conveys “all timber, standing or fallen, with the right to cut and remove same at any time,” contemplates that the timber should be removed within a reasonable time and without unreasonable delay. That case is controlling here and we hold that it was the duty of the company under the deed in question to cut and remove the timber within a reasonable time. (2) The mill plant of the company was, destroyed by fire in May, 1908. According to the testimony of the officers of the company, it had extended its tramroad to within 250 yards of the land in question and the timber would have been cut and removed from it within sixty days if the fire had not occurred. The present action was commenced on April 11, 1916, and at that time the company had not rebuilt its mill. The delay is accounted for by the officers of the company on the ground that the company could not procure money with which to rebuild the mill on account of its size and cost and from the further fact that soon after the fire occurred there was a fall in the price of lumber and it has not since been profitable to operate a mill. These matters constituted no excuse for the nonperformance of the contract on the part of the company. In Ingram Lumber Co. v. Ingersoll, 93 Ark. 447, the court held that a party to a contract may not excuse his failure to perform it by showing the stringency of the money market where the contract did not provide for a release in such a contingency. Again in Newton v. Warren Vehicle Stock Co., 116 Ark. 393, the court held that where a company contracted to purchase and remove timber within a certain time, the fact that misfortune overtook it will not excuse it from liability for a breach of the contract. In the case of Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776, in discussing a precisely similar question the court said, “The accident of a falling market or undue delay in rebuilding the mill after its destruction; these, and similar disturbances, should exert no influence with the jury. But when the mill was destroyed by fire, a reasonable time was allowed for its reconstruction.” In the present case eight years was allowed to elapse before the company commenced to rebuild its mill. This was an unreasonable time. It follows that the chancellor erred in dismissing the complaint of the plaintiff's for want of equity. For the error that decree must be reversed and the cause will be remanded with directions to the chancellor to grant to the plaintiffs the relief prayed for in their complaint. It is so ordered.