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the purchaser replied: "Thank you,” original purchase agreement, but beand the conversation ended. Accord- fore the time of the extension had exing to the court, this amounted to an pired. Such purchaser had no notice agreement between them for an ad- of the first agreement. The court ditional year in which to remove the held that the effect of the expiration timber.

of the time under the minority rule The right of the seller to recover was to constitute the owner of the the purchase price cannot be defeated timber a trespasser in entering upon by showing that the timber was not the land for the removal thereof. all removed within the time limited, An agreement to extend this time was where, after such time, the defendant not a conveyance, or such an instrupurchaser entered upon the land and ment as is embraced within the recremoved the timber without any in- ordation statute, but merely had the terference by the seller. Nichols v. effect to relieve the owner of the timLane (1922) 192 N. Y. Supp. 362. ber from being held responsible as a According to the court, the limitation trespasser. That in this case the of time is for the benefit of the seller, owner of the land, having given the and he can, and in this case did, waive second agreement without limitations

and restrictions so far as the right to In Sikes v. Turner (1923) 212 Mo. assign was concerned, could not be App. 419, 247 S. W. 803, where an heard to say that there was a preowner of timber had conveyed the vious agreement between the parties same by a deed which required the which restricted the removal to the purchaser to remove the timber by purchaser of the timber individuJuly 12, 1919, and subsequently ex- ally, and denied the right of alientended the time limit to December 31, ation as against one to whom a pur1919, but upon subsequent conveyance chaser sold the timber, and who had of the land, recited that the con- no knowledge of the previous agreeveyance was made subject to a cer- ment. It was accordingly held that tain timber contract expiring "Janu- such vendee of the original purchaser ary 1, 1919," it was held that the pur- was protected by the second agreechasers, who had no knowledge of the ment, in entering upon the land for timber deed or the extension thereof, the removal of the timber. neither of which was recorded, were An unrecorded extension of time is unaffected by the time limit fixed in held binding upon the owner who such deed and extension.

gave it, although of no effect as to the An interesting question as to ex- third persons, in Lake End Lumber tension of time arose in Hanby V. Co. v. Walker (1924) 155 La. -, 99 So. Dominick (1921) 206 Ala. 539, 90 So. 598. 287, a jurisdiction which adheres to In Cunningham v. Richeson (1924) the minority rule that the purchaser - Va. -, 121 S. E. 889, an unrecorded of the timber is the owner thereof, extension of the time fixed in a connotwithstanding the expiration of the tract of sale of timber, bark, and wood time limit for the removal thereof rights on land given by the owner from the land. In that case, the thereof was held ineffectual as against owner of the land and the purchaser a subsequent purchaser of the land, of the timber had agreed for an ex- who relied upon the original contract tension, which was limited to the of sale of the timber, bark, and wood purchaser individually. Subsequent- rights, which was duly recorded. ly, another agreement for extension An extension taken from the origiwas entered into between the parties, nal owner in reliance upon his record which was not so limited. The latter title was sustained in Atlantic Coast extension was recorded, the former Lumber Corp. v.

Langston Lumber Co. not. Subsequently the purchaser of (1924) S. C. 122 S. E. 395, althe timber sold his right to another, though he had conveyed away a half who entered upon the land after the interest in the premises, excepting expiration of the time limited in the therefrom the timber, but by mistake the habendum clause in the deed of in which to cut and remove the timconveyance was omitted from the rec- ber. Walker v. Cox (1923) 209 Ala. ord, so that the deed as recorded con- 627, 96 So. 707. tained no words of inheritance.

In Maynard v. Farley (1923) 198 As shown in the earlier annotation, Ky. 420, 248 S. W. 1022, an action by on page 91, a contract that has been a landowner to quiet title to the land before the courts of Arkansas a num- after the expiration of the time limber of times provides that the pur- ited for removing the trees, a parachaser shall cut and remove the tim- graph in the defense that, because of ber as expeditiously as possible, and, World War conditions, defendant was unless it shall be removed within a unable to procure hands to remove stated number of years, that the pur- the trees, and that he was too old and chaser shall pay taxes accruing on the feeble to do so, was held to state no land thereafter. It has uniformly defense. been held that the purchaser has not, Where the weather conditions are in all events, the time stated in which shown to have been such as to have to remove the timber, but that he must prevented the removal of the timber proceed expeditiously. This rule of

during the time an injunction by the the earlier cases has been followed in

landowner was in force, the time will Southern Lumber Co. v. Hampton not be extended because of the in(1924) – Ark. 258 S. W. 977.

junction. Swiftwater Plantations Co.

v. Davis (1923) 287 Fed. 813. b. By operation of law. (Supplementing annotation in 15 V. Effect of fact that trees have been A.L.R. 93.)

cut or manufactured. As shown in the earlier annotation (Supplementing annotation in 15 some courts have given a reasonable A.L.R. 95.) iime after the time specified, in case As shown in the earlier annotation, the removal is interfered with by act where the timber is cut, but not reof God, or act of the seller, or by moved from the land at the expirasome unforeseen casualty or misfor- tion of the time limit, the courts are tune over which the purchaser had not agreed as to the status thereafter. no control.

It has been held in jurisdictions Where the landowner has, by law- which adhere to the general theory suits, threats, and divers interfer- that the purchaser loses his rights ences, prevented the purchaser of the by failure to cut and remove the timtimber from cutting and removing the ber within the time stipulated that, trees and timber within the time lim- if the timber is cut, title remains in ited in the deed, the time will be ex- the purchaser, although the timber retended by the court. Roberson v. mains on the land at the expiration of Little (1917) 200 Ala. 582, 76 So. 940. the time specified. This doctrine has

An extension beyond the time lim- been followed in Pryor v. Interited in the contract will not be national Lumber Co. (1923) Minn. granted because of the fact that the -, 195 N. W. 772. owner of the land began an action In Clark v. Aldrich (1922) 278 Fed. against the purchaser of the timber 941, all the timber had been cut withto reform the contract so as to limit in the time limit, but at the expirait to a. sale of timber over a certain tion thereof there were still on the diameter, relief which was granted, land about 425 cords of wood, 25 where no injunction against the pur- cords of slab, and 150,000 feet of chaser was sought, nor was it claimed sawed lumber. It was held that when that any force was used or threatened the timber was cut it became the peragainst him as to the cutting of the sonal property of the purchaser theretimber, and the suit itself terminated of, and that it was not forfeited to six months prior to the expiration of the owner of the land by the expirathe time limited, and it appeared that tion of the time limit, there being no the six months was a reasonable time language in the contract expressing an intention to forfeit cut wood and chaser after the expiration of the lumber.

time limited. This rule has been folVI. Rights upon subsequent sale of land.

lowed in Broadwell v. Walker (1921) (Supplementing annotation in 15

216 Mich. 210, 184 N. W. 866. ComA.L.R. 106.)

pare with Huron Land Co. v. Davison Where land has been conveyed by

(1902) 131 Mich. 86, 90 N. W. 1034,

discussed in the earlier annotation the owner to his wife and children,

at page 110. by a deed containing a provision that the wife shall hold the land in trust

The right of the landowner to have

his title quieted after the expiration for herself and other heirs, and shall

of the time limited for the removal pay certain charges thereon, and,

of the trees was sustained in Mayfurther, that she shall sell with the

nard v. Farley (1923) 198 Ky. 420, 248 consent of the grantor any part or

S. W. 1022. In this case the right of all of the above-described land for

the purchaser of the timber to rethe support of the children and the grantor, and thereafter the grantor

cover the amount he had paid there

for was denied. and his wife execute a timber deed of

It being held in Clark v. Aldrich timber on the land, which provides

(1922) 278 Fed. 941, that the timber, for a removal within a certain time

which had been cut and manufacand an extension of such time upon

tured into cordwood, slabs, and sawed the payment of a certain sum, the

lumber, did not revert to the landsum so provided is payable, after the death of the husband, to the wife,

owner upon the expiration of the time

was

limited, the landowner held although she is only a life tenant of

liable to the timber owner for conthe land, where the deed of the timber

version of the lumber to his own use. contains the provision that she shall

A purchaser of timber who is in a have all the proceeds of the land. Nichols v. Day (1922) 128 Miss. 756, position to cut and remove the timber

within the time limited by the con91 So. 451.

tract is entitled to recover the full VII. Actions.

net value of the timber which he has (Supplementing annotation in 15 been unable to remove because his A.L.R. 110.)

right to remove has been wrongfully As shown in the earlier annota

stayed by injunction until the time tion, at page 11, the owner of the has expired. Gatewood v. Fry (1922) land has been held entitled to recover 183 N. C. 415, 111 S. E. 712. the value of trees taken by the pur

W. A. E.

OHIO CONFECTION COMPANY, Respt.,

V.
EIMON MERCANTILE COMPANY, Appt.

Minnesota Supreme Court - February 2, 1923.

(154 Minn. 420, 191 N. W. 910.)

Sale — failure to follow shipping orders effect.

1. Goods were ordered to be shipped by the seller to the buyer by boat. They were shipped by rail instead. Because the shipment was not made in accordance with the terms of the order, the property in the goods did not pass to the buyer, and there was no delivery of the goods.

[See note on this question beginning on page 955.] Headnotes by LEES, C.

(154 Minn, 420, 191 N. W. 910.) - delayed shipment release of - failure to demand delivery efbuyer.

fect. 2. By the terms of the order the 3. A portion of the goods ordered goods were to be shipped to Superior, was shipped in June. Noted upon the Wisconsin, at once. They were in- invoice were the words “Balance will tended to supply the passenger boat follow." The buyer made no demand trade on the Great Lakes, were or- for the shipment of the remaining dered on May 4, and were not shipped goods. On September 7 it sent a teluntil September 7, when the season of egram canceling the order as to a pornavigation was nearly over. Under tion of the goods still to come. It sent these circumstances the shipment was no other communication to the seller. too late, and the buyer was not obliged Neither its silence nor its telegram to receive or accept the goods unless was a manifestation of an intention to there was a waiver of the right to waive prompt shipment. insist on an earlier shipment.

[See 23 R. C. L. 1375.] [See 23 R. C. L. 1373.]

APPEAL by defendant from an order of the District Court for St. Louis County affirming an order of the Municipal Court of the City of Duluth (Lanners, J.) denying a motion for judgment notwithstanding a verdict for plaintiff or for a new trial in an action brought to recover the purchase price of goods alleged to have been sold and delivered by plaintiff to defendant. Reversed.

The facts are stated in the opinion of the court.

Messrs. McClearn & Gilbertson, for Lees, C., filed the following opinappellant:

ion: in order for plaintiff to recover it is Action in the municipal court of necessary to show that the title passed

the city of Duluth to recover the by actual or constructive delivery.

purchase price of candy ordered by Williston, Sales, p. 400; Jones v. Schneider, 22 Minn. 279; Hoover v.

defendant from plaintiff. Plaintiff aher, 51 Minn. 269, 53 N. W. 646;

is a manufacturer of candy at Fisher v. Boynton, 87 Me. 395, 32 Atl. -Cleveland, Ohio. Defendant is a 995; Lewis v. Hojer, 41 N. Y. S. R. grocer at Superior, Wisconsin. On 617, 16 N. Y. Supp. 534.

May 4, 1920, G. M. Haugner, then Delivery to a carrier other than that in charge of defendant's confectiondesignated by the purchaser is not a

ery department, gave the order to delivery to him and title does not pass.

Barney Sands, one of plaintiff's Jones v. Schneider, 22 Minn. 279; Hoover v. Maher, 51 Minn. 269, 53 N.

traveling salesmen. Sands wrote W. 646; Fisher v. Boynton, 87 Me. 395,

the order and left a copy with Haug32 Atl. 995; Banik v. Chicago, M. &

ner.

It contained these words: St. P. R. Co. 147 Minn. 175, 179 N. W.

“How ship: Boat. When: At 899; McDonald v. Pearre Bros. Co. 5 once.” A portion of the order was Ga. App. 130, 62 S. E. 830; Wheelhouse filled on June 18, and is not here inv. Parr, 141 Mass. 593, 6 N. E. 787. volved. The remainder of the candy

Messrs. Courtney & Courtney, for ordered was shipped by plaintiff by respondent:

rail on September 7. Defendant reShipment by boat is waived by the fused to receive or accept it on the only witness produced by defendant ground that it came too late and was and by the letter refusing the goods; not shipped by boat, and this action also the shipment in June, by rail, and

followed. the agreement to mail notice of price

The complaint alleged a sale and changes.

delivery of the candy, the agreed Banik v. Chicago, M. & St. P. R. Co. 147 Minn. 175, 179 N. W. 899.

price, and a failure to pay. The anThe delivery was sufficient to allow

swer was a general denial. The recovery for the purchase price.

trial was by jury. Sands was a witSeaver v. Lindsay Light Co. 111 ness for plaintiff. He testified that Misc. 553, 182 N. Y. Supp. 30.

the order he left with Haugner was not worded the same as the one he pealed to the district court from an sent in to plaintiff. The latter was order denying the motion. produced and received in evidence The appeal was heard by the six over defendant's objection. It read: judges of the eleventh judicial dis"Ship to Eimon Mercantile Co., R. trict. They were unable to agree, R. Station, Superior, Wis. When: three being of the opinion that the

He also testified that order should be affirmed, and three Haugner said he wanted the candy of a contrary opinion. As a result as soon as plaintiff could possibly of this division of opinion, the order ship it, and that he told him ship- was affirmed, and defendant has apment would be made as soon as pos- pealed. The conflicting views of the sible. Haugner testified that he district judges are set forth in asked for immediate shipment be- memoranda filed with the order. cause the candy was ordered for the Those favoring an affirmance were boat trade, and the season is short; of the opinion that the municipal that it is cheaper to ship by boat court did not err in receiving in evithan by rail; and that the order, dence the order Sands sent to plainwith respect to the time and man- tiff, although it differed from the ner of shipment, was written in ac- one he left with Haugner. They cordance with his instructions. He said it was an untrustworthy item denied that the candy was ordered of evidence, and probably received for shipment as soon as possible. It scant consideration at the hands of appeared that on September 7 he the jury, but, if it was erroneously sent a telegram to plaintiff, which admitted, the error was not prejuread: "Cancel order for 5cs. Sunny dicial, and that the jury doubtless Jim. Acknowledge.” Sunny Jim

Sunny Jim disposed of the case on the theory was part, but not all, of the candy that defendant had waived its right covered by the unfilled portion of the to a prompt delivery. The words order. His explanation was that he "Balance will follow" on the June was then taking charge of another invoice, the absence of any attempt department of defendant's business, to cancel the order prior to Septemcame across the order, noticed that ber 7, and Sands's testimony as to it had only been partially filied, and what was said about delivery when sent the telegram as a precaution. he took the order, were mentioned Asked whether the shipment was as circumstances warranting the refused because it was not made by jury in concluding that there had boat, he answered that the differ

been a waiver. The judges who ence in rates would have been de

were of a contrary opinion said the ducted if the shipment had been ac

evidence would hardly sustain a cepted; that it came too late because the season was over. It appeared

finding that it was ever understood

that the period of delivery designatthat the words “Balance will follow” were written on the invoice of

ed as "at once" could be extended the June shipment. Haugner ad

over the entire summer season; that mitted that he noticed these words,

the words “Balance will follow" on and did nothing aside from sending the invoice meant that it would folthe telegram referred to. The court

low within a reasonable time; that instructed the jury that, if the shipment by rail instead of by boat agreement was that the goods were was contrary to the terms of the to be shipped at once, defendant was order, and was not a delivery to deentitled to a verdict unless it had fendant, and hence title did not pass, waived its right to insist upon such and plaintiff's remedy, if any it had, shipment. No exceptions were tak- was an action for damages for en to the charge. The verdict was breach of contract. in favor of the plaintiff. Upon a Our opinion coincides with that settled case, defendant moved for expressed by the judges who favored judgment or a new trial, and ap- a reversal of the order. It can hard

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