Davis v. Bellows

Mates, C. J., delivered the opinion of the court. After a most careful consideration of this record in all of its aspects, we reach the following conclusions: The contract between the parties gave appellants the [842] right to cut all the merchantable timber on the land for a period of five years; appellants to pay one dollar and twenty-five cents per M feet for all timber actually cut in that time, payments tó be made on the dates named in the contract, and the right thus granted to terminate on January 1, 1908. By the contract appellants were only bound to pay for the timber actually cut by them during that time, after which they had no further rights in the premises. The three thousand, two hundred dollars paid to appellee at the date of the contract constituted no payment for the timber,.in the sense that it became absolutely the money of appellee, whether the appellants cut the timber or not; but it was left with her as a mere advance payment, or security, for timber which appellants expected to cut and pay for at the rate of one dollar and twenty-five cents per M feet, and which, if they did not cut, certainly obligated Mrs. Bellows to return the advance payment to them. In effect the contract is simply this: Appellee gave a five-year option to appellants on all merchantable timber on the lands, for which they agreed to pay her one dollar and twenty-five cents per M feet as they cut it. The appellants placed in appellee’s hands three thousand, two hundred dollars to be held by her during the continuance of .the contract. If appellants cut all of the timber, as it was contemplated that they should do, but which. the contract did not oblige them to do, then the three thousand, two hundred dollars was to be absorbed by applying it as a payment on the last two million five hundred and sixty thousand feet of timber at one dollar and twenty-five cents per M feet. A calculation will show that the above number of feet at the rate specified will make exactly three thousand, two hundred dollars. If the contract expired before all the timber had been cut, appellee had the right to stop the cutting and put appellants off-the premises, withholding so much of the three thousand, two hundred dollars as it took to pay for any timber that was cut and un [843] paid for at the time of the expiration of the contract, at the rate of one dollar and twenty-five cents per M feet. If appellants had paid all that was dne at the date of the expiration of the contract, then the whole' of the three thousand, two hundred dollars should be returned to them; but appellee had no right to claim a forfeiture of the three thousand, two hundred dollars, or any part thereof. This case is reversed and remanded, with instruction to the trial court to have an accounting between appellants and appellee. If it shall appear that the appellants are due appellee any sum for timber cut by them before January 1, 1908, and not paid for, then the court shall decree that the appellee shall deduct so much from the three thousand, two hundred dollars as is necessary to pay for the timber cut by appellants and not paid for, giving a decree in favor of appellants' for the balance; and if it shall appear that appellants have paid all that they owe to appellee, then appellants shall have a decree for the whole sum, and the court shall make any sum found due appellants a charge on the timber in question. Reversed and remanded. Suggestion of error filed and overruled.