Wax Lumber Co. v. Netterville

Kyle, J. This case is before us on appeal by Wax Lumber Company, a partnership composed of Louis Wax, Mary Posey Wax and Louis Wax, Jr., complainant in the court below, from a decree of the Chancery Court of Wilkinson County sustaining a demurrer to the bill of complaint filed by the complainant against B. B. Netterville and his wife, Alma H. Netterville, defendants in the court below, and dismissing the bill of complaint. The complainant alleged in its bill that on April 25, 1953, the complainant purchased from the defendants all hardwood trees of every kind and species 12 inches or more in diameter across the stump, and all pine trees 10 inches or more in diameter across the stump, on certain tracts of land, situated in Wilkinson County, containing approximately 205 acres, said land being fully described in the bill of complaint; and that the defendants executed and delivered to the complainant a deed of conveyance of said timber, with the right of ingress and egrees to, on, over and across the above described land for a period of four years from and after April 25, 1953, for the purpose of cutting and removing said trees, as fully shown by copy of said timber deed attached to the bill of complaint and filed as an exhibit thereto. The complainant further alleged in its bill, that the complainant, on or about the 8th day of December, 1956, well knowing that the period of. time allowed for the cutting and removal of the trees so purchased would expire on April 25, 1957, and desiring not to cut the trees within that period of time unless it had to do so, had its agent and timber foreman, E. H. Spillman, contact the defendant B. B. Netterville to ascertain if it was agreable to the defendant to grant an extension of time for the cutting and removal of said trees for an additional term of one year; and that the said B. B. Netterville indicated to the said E. H. Spillman that for an additional sum of $162.50, or five per cent of the purchase price paid for — 353 — said trees, it would be agreeable to tbe said defendant to extend the time within which the complainant would be permitted to cut and remove the trees for a term of one year from April 25,1957; that the complainant thereupon issued its check on the Commercial Bank of Woodville, Mississippi, dated December 8, 1956, payable to the said B. B. Netterville for the sum of $162.50, which check had plainly written on the face thereof, the following: “Extension timber contract home place to 4/25/58;” and that said check was on said date, or in a day or two thereafter, delivered personally to the said B. B. Netterville by the said E. H. Spillman; that the said B. B. Netterville, by the said E. H. Spillman; that the said B. B. Netterville, well knowing that the check was tendered to him for the extension of time for the cutting and removal of the trees of one year, accepted the said check from the said E. H. Spillman, without comment, and willfully, knowingly, intentionally and deliberately kept and retained said check, thereby intentionally and deliberately leading the complainant to believe that the additional period of time within which to cut and remove said trees had been granted; and that the said B. B. Netterville kept said check without cashing it from about December 8, 1956, until about April 29, 1957, which latter date was after the termination date stated in the timber deed, and then had his attorney return said check to the complainant by mail and by letter inform the complainant that no agreement had been made to extend the time for the cutting and removal of the timber, and that since the deed did not contain any provision for extending the time for cutting the timber, the removal period had expired. Copies of the above mentioned check for the sum of $162.50, and the letter written by the defendants’ attorney to the Wax Lumber Company on April 29, 1957, were also attached as exhibits to the bill of complaint. The complainant further alleged that it had on deposit in the bank on which the check was drawn, at all — 354 — times between December 8, 1956, and April 29, 1957, a sufficient amount of money to pay said check, and relying on the agreement of the defendant B. B. Netter-ville to grant the complainant an extension of time from April 25,1957, to April.25, 1958, within which to cut and remove the trees purchased by the complainant, and the acceptance and retention of said check by the said B. B. Netterville, the complainant refrained from entering upon the land and removing said trees between December 8, 1956, and April 25, 1957, as it could easily have done and would have done had the defendant B. B. Netterville returned the check within a reasonable time after December 8, 1956, as he should have done, if he had not agreed to and did not intend to grant the extension of time for removal of said trees; that by his said action in retaining said check until after the expiration dated named in said deed, without informing and advising the complainant that there was no agreement made to extend the time for cutting and removing said trees, as stated on the check, the defendants held title to the said trees in trust for the complainant, with the right of the complainant to cut and remove said trees within a period of one year, or within a reasonable period of time to be fixed by the court. The complainant therefore prayed that the defendants be summoned to appear and answer the bill of complaint, but not under oath, such oath being waived, and that on the final hearing the defendants be compelled to execute to the complainant an instrument granting the complainant an additional period of time of one year, or a reasonable period of time, from and after the date of the decree, within which the complainant should be authorized to enter upon the land and cut and remove the trees, without further compensation to be paid to the defendants for such extension of time, “because of the expense forced on complainant by the fraudulent actions of the defendant, B. B. Netterville, in keeping and retaining — 355 — the check as herein alleged.” The complainant also prayed for general relief. The defendant, B. B. Netterville and his wife, Alma H. Netterville, in their general demurrer, alleged that there was no equity on the face of the hill of complaint, and that the hill stated no ground of equitable jurisdiction and no cause of action against the defendants or either of them. Several other grounds of demurrer, which were for the most part merely technical grounds, were also stated. The appellant’s attorneys argue in support of their contention that the chancellor erred in sustaining the general demurrer, that the permission granted by Netterville to the complainant to cut the timber within one year after the expiration of the four years provided for in the timber deed, was in legal effect a license, and was good and valid until revoked; that to permit the appellees to revoke the license granted for an additional one year, under the facts alleged in the bill of complaint, would result in the perpetration of the rankest kind of fraud upon the appellant, to its great damage and to the great financial benefit of Netterville; and that the appellees are estopped by Netterville’s conduct from exercising the right to revoke the parole license so given to the appellant to cut and remove the trees within an additional period of one year. The appellees’ attorneys invoke the Statute of Frauds; and in reply to the argument made on behalf of the appellant, the appellees’ attorneys say that the contract upon which the complainant’s suit is based is an oral contract upon which no action can be brought, according to the terms of the statute itself (Section 264(c), Code of 1942), and that no facts are alleged in the bill to take the transaction out of the operation of the statute. The appellees, attorneys also say that the bill does not show that the appellee, Alma H. Netterville, was a party to any agreement, either written or oral, concerning an extension of time for the cutting of the timber. — 356 — We think the chancellor erred in sustaining the demurrer to the bill of complaint. The case is one in which all the facts ought to have been developed under an answer. Griffith, in his Chancery Practice, says: “In accordance with the trend of modern judicial opinion it has been definitely established as a rule by our latest cases that attempt should not be made to settle close and difficult questions of law and right on a demurrer. If the demurrer raise merely a doubtful question or if the case be such that the cause of justice will probably be promoted by a determination of the ultimate right only on answer and proof, the court ought to exercise a fair judicial discretion to that end, although it may be that in technical point the grounds of the demurrer are sustainable in strict law.” Griffith’s Mississippi Chancery Practice, Second Edition, 1950, p. 297, Demurrers, par. 310. See also Federal Land Bank v. Fidelity & Deposit Co., 165 Miss. 715, 147 So. 917; Gully v. Bridges, 170 Miss. 891, 156 So. 511; Taylor v. Twiner, 193 Miss. 410, 9 So. 2d 644; White v. Turner, 197 Miss. 265, 19 So. 2d 825. The bill of complaint in this case contains several imperfections. The bill was not filed in the name of the individual partners, as required by McCullar v. Mink, 121 Miss. 829, 83 So. 907. But the partners are named in the bill, and no point has been made as to their right to sue in the partnership name. The bill does not state whether the title to the land was in Netterville alone or in Netterville and his wife. It does not state whether Netterville acted for himself in the sale of the timber and in the matter of granting additional time to the complainant for the cutting of the timber, or whether he acted for himself and his wife. But we think the bill, notwithstanding its imperfections, was sufficient to withstand a general demurrer, and to require an answer. The bill alleged that Netterville, well knowing that the check had been tendered to him for an extension of time — 357 — for the cutting of the trees, accepted the check from Spillman without comment, and kept and retained the check for a period of more than four months “thereby willfully, knowingly, intentionally and deliberately leading complainant to believe that the additional period of time of one year * * * had been granted. ’ ’ The bill further alleged that the complainant relied on the agreement and Netterville’s acceptance and retention of the check, and refrained from entering upon the land and removing the timber between December 8, 1956, and April 25, 1957, as he could have done and would have done had Netterville returned the check to the complainant within a reasonable time. And finally, the bill alleged in the prayer for relief that Netterville’s actions in keeping and retaining the check under the circumstances stated above were fraudulent. We think there was enough in the bill to reveal equitable merits, certainly as to Netterville himself, and as to his wife also, if she owned any interest in the land and he was acting as agent for her. The demurrer was a general demurrer by the two codefendants, and even if good as to one of the defendants, but not good as to the other, should have been overruled. Griffith’s Mississippi Chancery Practice, Second Edition, 1950, pp. 291, 292, par. 305. Eeversed and remanded. McGehee, G. J., and Roherds, Lee, Arrington, Ethridge, and Gillespie, J.J., concur.