Billings v. Billings , 1 Pennyp. 145 ( 1881 )


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  • The opinion of the Court was delivered October 3d, 1881, by

    Sterrett, J.

    The contract of September 26th, 1879, between Billings, the husband of defendant, and Colton, by which the latter agreed “ to cut, peel, transport, and deliver into the Susquehanna boom at Williamsport,” within four years, all the merchantable pine timber then growing upon certain lands of the former, contains some peculiar provisions; but, aside from the clause hereinafter quoted, it is substantially an agreement, on the part of Colton, to do all the work of cutting and delivering the timber, for which he was to receive from Billings four dollars per thousand feet, payable not in money hut “in good, merchantable pine saw logs, equal in value to the timber cut upon said lands, at the price or sum of eight dollars per thousand feet, to be delivered in the boom ” After specifying the services to be rendered by Colton and the manner in which he was to be compensated therefor, Billings agrees, in the clause referred to, “’that he will not' sell or dispose of said timber or any part thereof to any other person at any price, without giving the said second party the refusal to purchase the same upon the same terms as he, the said first party, shall sell the same.” This is the clause, in the contract above referred to, upon the effect of which the present contention hinges. The several assignments of error relate either directly or indirectly to the construction given to it by the Court below.

    Luring the lifetime of Mr. Billings there was no actual severance of any part of the timber in question; but defendant contends that by the terms of the contract it was constructively severed from her husband’s real estate, and thus became a species of personal property, which, after his *152decease, she, as his personal representative, had a right to administer, and that as his widow she is entitled under the intestate law to one-half of the net proceeds thereof. She accordingly settled with Colton for the work done under the contract, and sold him timber in the boom to the amount of six thousand six hundred dollars and received the money. If the proper construction and legitimate effect of the contract is as she contends the judgment should be sustained. On the other hand, if there was no severance, actual or constructive, during the lifetime of the intestate, it follows that the timber, at the time of his decease, continued to be a constituent part of his real estate, the title to which vested in his heirs-at-law, subject to such incumbrances and charges as may have existed against the same.

    In construing the contract the learned president of the Common Pleas substantially held that the clause in question gave Colton an unqualified refusal of all the timber he agreed to cut and deliver in the boom; that this was in effect a sale at the option of Colton for a price to be fixed in the future, and that the case was brought within the recognized principle that a sale of standing timber, made with a view to its immediate removal, works a conversion of it into personalty. In thus construiug the contract, and especially in holding that it gave Colton the unqualified refusal of the timber cut and delivered in the boom, we think there was error. While Billings bound himself not to sell or dispose of the timber, cut and delivered under the contract, to any other person without first giving Colton the refusal to purchase upon the same terms, it is very clear he was not bound to sell either to Colton or any one else. He was entitled to the possession of it iu the boom, and might hold it for an indefinite period; or, if he chose, he might manufacture it into any kind of lumber for which it was suitable, and either use or dispose of the product as he saw fit. So far as any provision of the contract is concerned no one could question his right to do so. It was only in case he determined to sell the logs that he was required to give Colton the refusal to purchase them. We see nothing in the contract that can fairly be construed into a sale of the standing timber. On the contrary the agreement is so framed as to preclude Colton from successfully asserting any title to or interest in the timber either before or after it was cut, unless Billings determined to sell or dispose of it, and then he was only bound to first tender it to Colton on such terms as he was willing to make with any other person.' The title and possession were exclusively in him. While he was bound to pay Colton “ in good, merchantable pine saw-logs,” for the *153labor of cutting and transporting the timber to the boom, he was not required to use for that purpose any of the logs cut by Colton. He had a right to pay him in any other logs, provided only they were “equal in value” and good, merchantable pine saw-logs.

    From what has been said it follows that the judgment should be reversed ; and, as to the only item of the plaintiff’s claim, viz, $6600, to which the assignment of error relates, judgment should be entered in favor of the plaintiffs. As to the other items of their claim, as set forth in the declaration, the plaintiffs have acquiesced in the judgment of the Court below.

    The judgment of the Court of. Common Pleas is reversed, and judgment is now entered in favor of the plaintiffs and against the defendant for six thousand six hundred dollars ($6600), with interest from November 2uth, 1880.

Document Info

Docket Number: No. 136

Citation Numbers: 1 Pennyp. 145

Judges: Sterrett

Filed Date: 6/21/1881

Precedential Status: Precedential

Modified Date: 2/18/2022