Peacock v. Horne , 159 Ga. 707 ( 1925 )

Hines, J.

(After stating the foregoing facts.)

The defendant claims title to the timber in dispute and the right to cut the same under the letters, telegrams, and contract of sale, the pertinent portions of which are embraced in the statement of facts. One of his contentions is that plaintiffs had authorized J. S. Reynolds and H. E. Casey to make with the defendant the contract of sale. We will first address onr attention to this contention. These letters and telegrams, standing alone, did not authorize Rejmolds and Casey to sell this timber. “Any contract for the sale of lands, or any interest in, or concerning them,” must be in writing in order to bind the promisor. Civil Code (1910), § 3222(4). Timber growing upon land is a part of the land, as the trees were not to be immediately severed from the soil and carried away. Balkcom v. Empire Lumber Co., 91 Ga. 651 (17 S. E. 1020, 44 Am. St. R. 58); Pritchett v. Davis, 101 Ga. 236 (28 S. E. 666, 65 Am. St. R. 298); Corbin v. Durden, 126 Ga. 429 (55 S. E. 30); Baucom v. Pioneer Land Co., 148 Ga. 633 (97 S. E. 671). This being so, the contract of sale must be in writing, under the statute of frauds. Where several writings are relied on to evidence the sale of land or of standing timber thereon which is a part of the land, and parol evidence is necessary to connect and explain such writings in order to constitute the contract of sale, such writings will not satisfy the statute of frauds. They can not be correlated and connected by parol evidence. Smith v. Jones, 66 Ga. 338 (42 Am. R. 72); North v. Mendel, 73 Ga. 400 (54 Am. R. 879); Lester v. Heidt, 86 Ga. 226 (12 S. E. 214, 12 L. R. A. 108); Turner v. Lorillard Co., 100 Ga. 645 (28 S. E. 383, 62 Am. St. R. 345); Timmons v. Bostwick, 141 Ga. 713 (82 S. E. 29). The telegram of “Petway, Edwards & Peacock” to J. S. Reynolds, dated March 21, 1921, makes no reference to the letter of James S. Reynolds and H. E. Casey to T. M. Ticknor, dated March 19, 1921. This telegram does refer to a letter from Reynolds to the senders of the telegram; but parol evidence would be necessary to connect any such letter with this telegram. The same is true of the telegram from Petway to Ticknor, dated Goldsboro, N. C., March 21,-1921. This telegram refers to a letter of Reynolds, without giving its date, or stating its subject-matter; and parol evidence would be necessary to connect this letter with the cutting of this timber, and to show to what Reynolds it refers. The letter from J. S. Reynolds to C. H. Peacock and T. II. Edwards, dated March 21,1921, recited that- Reynolds was enclosing contracts entered into that day for the cutting of timber on Beechgrove plantation. He requested the addressees to endorse those contracts and forward as soon as possible to Petway with request that he also -endorse and return them directly to the writer at the earliest possible moment. Parol evidence would be necessary to connect the contracts therein referred to with the one made between Eeynolds and Casey of the one part, and the defendant of the other part, for the sale of this timber. Parol evidence would be necessary to show what contracts were enclosed, and between whom they were made. The telegram from Petway, Edwards and Peacock to Eeynolds, dated March 22, 1921, recited that the senders gave permission for Eeynolds to cut timber as per suggestion in some letter from him. Parol evidence would be necessary to show what timber and what letter were referred to, and on what terms the permission was given. So we are of. the opinion that these telegrams and letters do not take this transaction out of the statute of frauds. To connect them up and make a complete contract, it would be necessary to introduce parol evidence in the respects above stated. In these circumstances these writings are insufficient, under the statute of frauds, to constitute an authorization by the plaintiffs to Eeynolds and Casey to sell this timber; nor are they sufficient, under that statute, to con - stitute a sale of this timber to the defendant who purchased the same from Eeynolds and Casey. The question whether, if Eeynolds and Casey had sold this timber to the defendant in the name of the plaintiffs and as their agents, these writings would confer on Eeynolds and Casey authority to make the sale of the timber to' the defendant, is not now for decision by this court.

Do the telegrams, letters, and partially executed contract of sale, combined, constitute a sale of this timber to the defendant? Edwards, one of the plaintiffs, unquestionably and admittedly signed this contract. The jury was authorized to find, although the evidence on this subject was conflicting, that Peacock, another of the plaintiffs, signed this instrument. Petway, the other plaintiff, did not sign, but declined to sign it. Under these circumstances this document did not convey the right and title of Petwav in and to this timber. Did this writing sell and convey the undivided interests of Edwards and Peacock in the same ? It is manifest that it was the intention of the parties that it was to be signed by all of the plaintiffs. This intention is evidenced by the fact that it was the purpose of the instrument to convey the joint interests of the plaintiffs in this timber. The instrument was so prepared as to effectuate this intention. By its form it was to be signed by the three plaintiffs. Three lines were prepared, one for the signature of each of them. In his letter of March 21, 1921, in which he transmitted this contract to Peacock and Edwards, Reynolds requested them to sign this instrument, and then to forward the same as soon as possible to Petway for his signature. It is thus -shown that the instrument was not to be a complete and effectual agreement until signed by all of the plaintiffs. When the intent is manifest that the contract is to be executed by others than those who actually sign it, it is inchoate and incomplete, and does not take effect as a valid and binding contract. 13 C. J. 305, § 128; Clarke v. McNatt, 132 Ga. 610 (1a) (64 S. E. 795, 26 L. R. A. (N. S.) 585); Mattoon v. Barnes, 112 Mass. 463; Graham v. Caperton, 176 Ala. 116 (57 So. 741); Bruch v. Shafer, 235 Pa. 590 (84 Atl. 515); Russell v. Annable, 109 Mass. 72 (12 Am. R. 665). This ease does not come within that class of cases wherein it is held that a party who signs and delivers an instrument is bound by the obligations it contains, although it is not executed by all the parties for whose signatures it was prepared, where there is nothing to indicate an intention on the part of him who signs not to be bound thereby until it is signed by others, which intention is brought home to the obligee therein, and where there is no express agreement or manifest intent to such effect, and where there is no loss of remedy by way of indemnity or contribution, by failure of other parties to execute the instrument. Naylor v. Stene, 96 Minn. 57 (104 N. W. 685). So we are of the opinion that it was the manifest intention of the parties to this contract that it was to be signed by all of the plaintiffs before it became binding on the two who signed it; and on the failure and refusal of one of the plaintiffs to sign it, it was not binding on those who did execute it.

Furthermore we are of the opinion that there was no sufficient delivery of this instrument, so far as the plaintiffs are concerned. Treated as a conveyance of this timber, it' must have been delivered to the purchaser. Civil Code (1910), § 4179. Delivery is ordinarily an essential element of the execution of a written contract. Denton v. Butler, 7 Ga. App. 267 (66 S. E. 810); 13 C. J. 307, § 131. Whatever will be a sufficient delivery of a deed for the conveyance of land will be a sufficient delivery of an executory contract for the benefit of the party to whom delivery is to be made. Hockett v. Jones, 70 Ind. 227. The delivery is complete when the contract, being ready for delivery, is handed or sent to the promisee with the intention at the time to pass the present title. Haven v. Chicago Sash &c. Co., 96 Ill. App. 92. The mere manual transition of such a paper is one thing; delivery of the instrument as an element of a contractual obligation is a different thing. The former without mutual intent to give validity to the paper, but a mutual intent to the contrary, does not constitute delivery. Carpenter v. Carpenter, 141 Wis. 544, 124 N. W. 488. Delivery is a matter of intention to be gathered from all the facts. Baxter v. Chapman, 147 Ga. 438 (94 S. E. 544); Willingham v. Smith, 151 Ga. 102 (106 S. E. 117). So where Eeynolds sent this contract to Peacock and Edwards, with the request that they sign -it, and then forward it to Petway to be signed by him, and Petway refused to sign it, and directed that it be sent back to Eeynolds, unsigned by him, and with no intention to deliver the instrument as a completed and binding contract, such transmission of the paper did not constitute its delivery by the parties who so signed it. This being so, this contract conveyed no title to or interest in this timber to the defendant.

The contention most strongly stressed by the defendant is that the plaintiffs, as against him, are estopped to deny his right to cut the timber in dispute. He contends that the plaintiffs by their acts and conduct, as reflected in the telegrams, letters, and contract of sale, the substantial parts of which are set out in the statement of facts, authorized Eeynolds and Casey to sell this timber to him, in pursuance of which he' made an initial payment on this purchase-money of $250, and expended the sum of $1143 in the purchase of an outfit for cutting the timber and converting it into'cross-ties; and that by reason of this situation the plaintiffs are estopped from asserting title as against him to the timber, and from undertaking to enjoin him from cutting the same. The trial judge took this view of the case, and declined to enjoin the defendant from cutting the timber. At the outset we can not agree with the position of counsel for the plaintiffs that writings which, on their face, are not sufficient to operate as a deed and to take the transaction out of the statute of frauds can not amount to an estoppel. This position is not sound. Equitable estoppel or estoppel in pais often arises from silence, acts and conduct, when the same would not take the transaction out of the statute of frauds and would not amount to a conveyance of or agreement to convey lands or some interest therein. So where one silently stands by and permits another to buy his property without disclosing his title, he is guilty of such fraud as estops him from afterwards setting up such title against the purchaser. Civil Code (1910), § 4419. So where one attests a deed, knowing its contents, and afterwards stands by and sees work done under it on the premises, without objection, he is estopped from afterwards asserting an older adverse title in himself. Georgia &c. R. Co. v. Strickland, 80 Ga. 776 (2) (6 S. E. 27, 12 Am. St. R. 282); Equitable L. & S. Co. v. Lewman, 124 Ga. 190 (52 S. E. 599, 3 L. R. A. (N. S.) 879). So although a deed under seal conveying land, executed in the name of the ostensible makers, but not in their presence, by a person authorized by them verbally, is invalid under the statute of frauds, yet, as against persons who have acted upon it in a way to be prejudiced should the authority to make it be repudiated, the ostensible makers will be estopped from denying the authority of the person who with their consent subscribed their names to the instrument. McCalla v. American Freehold &c. Co., 90 Ga. 113 (15 S. E. 687). So where one, as agent for another, signs a deed conveying property, he will be estopped from thereafter asserting against the grantee any adverse right based on a title or interest outstanding in such agent at the time of the execution of such conveyance. American Freehold &c. Co. v. Walker, 119 Ga. 341 (46 S. E. 426). These authorities and many more which could be cited demonstrate that writings which themselves are not sufficient to operate as a conveyance or to take the transaction without the pale of the statute, of frauds, may operate to estop a party from asserting title to or an interest in lands. A contrary holding would make the statute of frauds, which is intended to prevent frauds as well as perjuries, a cover for frauds. Robson v. Harwell, 6 Ga. 589; Cameron v. Ward, 8 Ga. 245; Jenkins v. Lane, 154 Ga. 454, 476 (115 S. E. 126).

This brings us to consider the question whether the plaintiffs are estopped by their acts and conduct from asserting their title to this timber against the defendant. • Before an equitable estoppel will arise, the party asserting it must have relied and acted upon the acts or declarations of the party sought to be estopped, and not upon his own judgment or upon any reliance upon some future act to be done or future execution of some instrument by the party sought to be estopped. Goodson v. Beachman, 24 Ga. 150; McCune v. McMichael, 29 Ga. 312; Stewart v. Brown, 102 Ga. 836 (30 S. E. 264); Brice v. Sheffield, 121 Ga. 216 (48 S. E. 925). 21 C. J. 1126, § 130. Construing the evidence most favorably to the defendant, it appears that the plaintiffs were willing for Reynolds and Casey to sell this timber. On March 19, 1921, James S. Reynolds and H. E. Casey wrote to T. M. Ticknor, a real-estate agent at Albany, Ga., who was handling the sale of the Beechgrove plantation for the plaintiffs, and requested Ticknor to seek on their behalf the consent of the plaintiffs to their making arrangements for the cutting of some of the timber, stating that they had an opportunity to make such arrangements on a stumpage basis and would like to close such contract on March 21, 1921. On the same day Ticknor forwarded said letter to Petway at Goldsboro, N. C. On March 21, 1921, Petway telegraphed Ticknor that he had wired Peacock and Edwards, requesting them to wire him authority for Reynolds to proceed as per his letter. On March 21, 1921, a telegram signed by “Petway & Edwards & Peacock” was sent to Reynolds, stating: “We authorize you to proceed as per your letter.” On March 21, 1921, the'fformal contract of sale of this timber by Reynolds and Casey to the defendant was prepared and executed by Reynolds and Casey. A memorandum followed their signatures, evidencing the consent of plaintiffs thereto and their joinder therein, which was to be signed by all the plaintiffs. On March 21, 1921, Reynolds wrote a letter to Peacock and Edwards, enclosing this contract and memorandum, and requesting Peacock and Edwards to sign this memorandum and forward the same to Petway for his signature. Edwards signed said memorandum. Whether Peacock signed the same is in dispute, Peacock denying his signature thereto. The contract and memorandum were then sent to Petway at Goldsboro, to be signed by him and then forwarded to Reynolds. On March 22, 1921; a telegram from Eastman, Ga., signed by “Petway, Edwards and Peacock,” was sent to Reynolds -at Albany, as follows: “ Our partnership gives permission to you to cut timber as per suggestion in your letter.” It was admitted that Petway had nothing to do with the sending of the above two .telegrams. The defendant testified that he purchased the timber for cross-ties under the contract of March 21, 1921, from Reynolds and Casey to himself; that the consideration mentioned therein was not paid before the contract was tendered to him as it is; that the letters and telegrams were shown to him before he entered into said contract; and that they influenced him in entering into said agreemeht and paying the consideration of $250. It thus appears that the defendant did not purchase this timber relying upon the above telegrams alone. He testified that the letters, telegrams, and contract were shown him before he paid the consideration of $250; and.that the contract was in its present shape when presented to him. He was thus put upon notice that the contract had not been signed by Petway and that its execution was incomplete. He was thus fully .advised that Petway had not signed the contract after being requested so to do and to return same to Reynolds. He did not under these circumstances rely upon the fact that all the plaintiffs had authorized Reynolds and Casey to sell this timber to him. The failure of Petway to sign the contract was sufficient to put him on inquiry as to why Petway had not done so. He was therefore put upon further notice that all the plaintiffs were to sign this contract before it became a complete and binding agreement. In these circumstances a finding was de manded that he did not rely upon the fact that the plaintiffs had authorized Reynolds and Casey to sell this timber and that they were consenting to the sale and joining in the conveyance. So we are of the opinion that no equitable estoppel arose in favor of the defendant against the plaintiffs, under the facts of this case.

But conceding that the plaintiffs were estopped from asserting their title to this timber, to what extent would the estoppel go ? Would the defendant be entitled to cut all the timber and reap all the gains of the enterprise ? It is well settled that estoppel conveys no title. Sheppard v. Reese, 114 Ga. 411 (40 S. E. 282); Bussey v. Bussey, 157 Ga. 648 (121 S. E. 821). An equitable estoppel rests upon good conscience. It will not be extended further than justice to the rights of others demands. Its whole scope is to protect one from a loss which, but for the-estoppel, he could not escape. Estoppel is not intended to work gain to the party asserting it. It should be limited to what' is necessary to put the parties in the same relative position which they would have occupied if the facts upon which the estoppel rests had not occurred. Lindsay v. Cooper, 94 Ala. 170 (11 So. 325, 16 L. R. A. 813, 33 Am. St. R. 105); Phillipsburgh Bank v. Fulmer, 31 N. J. L. 52 (86 Am. D. 193); Gjerstadengen v. Hartzell, 9 N. D. 268 (83 N. W. 230, 81 Am. St. R. 575); 10 R. C. L. 697, § 25. In the instant ease the money paid by the defendant with interest, and any damages sus,tained by him growing out of necessary and reasonable expenditures which were made in pursuance of the purchase of this timber in order to manufacture the same into cross-ties, and which would become a loss to the defendant if he were not permitted to use this timber, would be the extent to which the estoppel should extend, if a case of estoppel had been made out; but, as we have undertaken to show above, no such case was made out.

Applying the above principles, the court below erred in not sustaining the. plaintiffs5 demurrer to the defendant’s answer in the respect complained of by the plaintiffs, and in not granting a new trial upon the grounds that the court erred in giving to the jury the instructions embraced in the eighth and ninth grounds of the motion for new trial, and because the verdict was contrary to the law and evidence. This renders it unnecessary to consider other assignments of error.

Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.

All the Justices concur.