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JENNISONS V. LEONARD, 88 U. S. 302 (1874)

U.S. Supreme Court

Jennisons v. Leonard, 88 U.S. 21 Wall. 302 302 (1874)

Jennisons v. Leonard

88 U.S. (21 Wall.) 302


1. When, under the Act of March 3, 1865, authorizing the parties to submit their case to the court for trial without the intervention of a jury, there have been no exceptions to rulings in the course of the trial and the court has found the facts specially and given judgment on them, the only question which this Court can pass upon is the sufficiency of the facts found to support the judgment. Any propositions of law stated by the court as having been held by it in entering its judgment are not open to exception.

2. Where A. agreed to sell timber lands to B. (the chief or only value of the lands being their timber) for a large sum, payable in three annual installments, B. agreeing to cut not less than so much timber a year, the value of which timber when cut, it was supposed, would be about enough to pay the said purchase money and to make monthly payments at the rate of a certain sum for each thousand feet cut, with an agreement that if in any year the monthly payments on the basis of the timber cut, taken together, fell short of the annual installment due, B. would make up the deficiency, with the farther agreement that B. should have possession, use, and enjoyment of the lands from the date of the agreement to sell, and should pay all taxes so long as he should continue in possession of them for the purposes of the agreement and that A., on B.'s making full payment with interest in the manner specified, would convey to him the lands in fee, in such case it must be assumed that the

Page 88 U. S. 303

parties intended that the payments were to be kept up in the ratio of the cutting, and that the vendor reserved a right of entry in case of a failure to pay, and time must be regarded as of the essence of the contract.

3. Where, in such a case, B. being indebted to C. for advances, mortgaged to him so many feet of timber then cut on the land, and the mortgage not being paid, C., agreeing with A. to operate under B.'s contract with A., and -- a dispute arising between A. and C. as to the amount due by B. to A. -- C. abandons the land and A. enters into peaceable possession, takes the timber at that time there, and not removed (which the evidence did not prove was the timber mortgaged), and has it sawed into boards, it is to be regarded as A.'s, and not in any sense as C.'s, and if C. take and convert it to his own use, assumpsit will lie against him for its value.

Leonard, owning certain timber lands in Michigan, agreed on the 1st of September, 1865, with one Cole, who was engaged in the lumber business and meant to cut the timber from them, to sell the lands to him for $27,000, payable, with interest, in three yearly payments -- $10,000 in the first and second years, each, and $7,000 in the third and last. The manner in which the said yearly payments were to be made was thus: Cole was to cut not less than three million feet of logs in each of the three years, and to pay Leonard, monthly, for every thousand feet cut and removed from the lands, the sum of $3, it being provided and agreed that in case the said monthly payments should fall short of the yearly payments agreed on as just mentioned, Cole was to make up the deficiency. It was agreed that Cole should have possession of the lands "hereby contracted to be sold" from and after the date of the contract, and the use and enjoyment of them and pay all taxes on them, so long as he should continue in possession of them for the purposes of the agreement, and that Leonard, receiving full payment of the $27,000, with interest, in the manner specified, and on Cole's performance of all his covenants, should execute and deliver to Cole, or to his assigns, good and sufficient deeds of conveyance of the lands thereby contracted to be sold, free from encumbrance and with warranty.

Page 88 U. S. 304

Cole, at the same time and by the same instrument, agreed to assign, on the execution of it to Leonard & Co., certain swamp lands in Ottawa Harbor.

Prior to June 11, 1867, Cole executed to L. & H. Jennison a bill of sale of a million of feet of the logs cut on the premises and three chattel mortgages upon the same to secure them for advances made to him. The Jennisons, not being paid the amounts secured by their mortgages, entered on the lands in question early in July, 1867, and took possession of the timber cut by Cole and not theretofore removed, and began to remove the same. On the 20th of that month, they entered into an agreement, by which they recognized the interest of Leonard in the property and undertook to pay what was due on the contract to Leonard, and what should become due so long as they "operated under said chattel mortgage."

A dispute soon arose as to the amount thus due, and on the 4th of September, 1867, the Jennisons refused further to "operate" on the land, but abandoned the land, and had not since removed any timber therefrom.

Leonard then, September 12, 1867, entered into possession of the lands for the alleged breach of contract by the nonpayment of $5,280 then due and unpaid on the contract of Cole, and took possession of all the "down timber" not removed, amounting to one million one hundred and twenty-two thousand feet, board measure. At an expense of $5,369, this timber was transported by Leonard to a mill near the mouth of the Grand River, sawed into lumber, and placed on vessels for the Chicago market, without interference with his possession, removal, or manufacture by anyone. While thus on the vessels, and about to be sent to Chicago, the Jennisons seized the lumber, then worth $13,464, and sold and converted it to their own use, asserting that the logs from which it was manufactured were theirs by virtue of the mortgages to them from Cole hereinbefore described.

For this taking Leonard sued them in assumpsit in the court below.

The case was submitted to the court for trial without the

Page 88 U. S. 305

intervention of a jury under the Act of March 3, 1865, which allows exceptions to the rulings of the court in the progress of the trial, and where the finding of the facts is special, as under the act it may be, allows this Court to determine "the sufficiency of the facts found to support the judgment."

The court found the case as above set forth, and upon it held the law to be:

"That the contract of September 1, 1866, was an executory agreement 'to sell;' that no title passed by virtue thereof, to Cole or his assignee, to any portion of the land or timber described therein; that the stipulation therein contained in reference to monthly payments for timber to be cut and removed, operated as a license to Cole or his assignees to cut and remove annually three million feet or more, so long as Cole suffered no breach of his agreements to pay; but that when a breach occurred, and entry by the plaintiff in consequence, such license was suspended, and could be restored only by waiver on the part of the plaintiff, or by paying whatever was in arrears."

"That no title passed to Cole or his assignees to any timber cut and not removed at the time of breach and entry by plaintiff."

"That the plaintiff's entry, September 12, 1867, for breach, occasioned by nonpayment under the Cole contract, being continued and tacitly acquiesced in by Cole's assignees, restored to the plaintiff both possession and right of property in lands and timber, and that the seizure subsequently by the defendants of the lumber produced from such timber rendered them liable to the plaintiff in this form of action for the value thereof at the place of seizure, with interest from the date of conversion."

The court accordingly rendered a judgment in $17,133 for the plaintiff. The defendant now brought the case here.

There were no exceptions to the rulings of the court in the progress of the trial.

Page 88 U. S. 307

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