#### Brown v. Kammerman.

Opinion delivered March 23, 1925.

Logs and ' logging — sale op timber. — A contract whereby the owner of land agreed to sell the. merchantable timber thereon, to be cut and removed.by a certain date, the consideration being certain work to be done by the grantee by a certain date, and’ upon his failure to- do the work the grantee to pay $4 per acre, held to be a sale of timber, and not'á mere ■ contract of employment. • 1

Logs and logging^-title to timber cut. — Where timber was cut under a contract of sale, and left on,the land by agreement of the owner, the title was in the purchaser, and the owner of the land had no title to convey to a purchaser of the land, though the latter had no notice of the sale of the timber.

Evidence — market value op timber. — In replevin for logs or their value*. testimony as to their value at the nearest market was admissible upon proof that they had no -market value at the place from which they were taken.

Replevin — market value of converted timber. — Where the owner of timber was prevented from receiving it iby the purchaser of the property on which" the timber was lying, under claim of ownership, the market" valué at’the timé the action of replevin was brought, and not at the time defendant claimed the timber was recoverable. .

Trial — necessity of specific objection to instruction. — In replevin for timber .of ii¿s value an instruction that if the jury found for plaintiff they should find for him the value of the logs at the time the suit was brought, though not as full and accurate as it might have been, was not inherently erroneous or prejudicial in the absence of specific objection.

Appeal from Clay Circuit Court, Western District; G. E. Keck, Judge;

affirmed.

G. T. Blopdworth, for appellant.

Oliver & Oliver, for appellee.

Wood, J.

On the 14th of January, 1922, D. Hopson and W. A. Kammerman entered into a contract whereby Hopson agreed-to sell to Kammerman-all the merchantable timber on the north half of -a certain tract of land, the timber to be cut and removed by May 1, 1922. In consideration of the contract, Kammerman agreed to slash and cut all the timber before May 1, 1922, and he *279was to have all of the timber so out by him. If be failed or refused to out and. slash all the timber before that date, be was to pay Hopson the sum of $4 per acre for. the timber on the land. Kammerman entered upon the. performance of the contract and cut all the timber on the tract, with the exception of a few trees, by the -26th day of April, 1922. Kammerman told Hopsdiij- the other party to the contract, that he wanted to-leave’ some- of the logs o'n the land until he could conveniently get thein off, and Hopson said, “That will be all right.” After May 1,1922, Kammerman left on the land certain cypress logs -containing 11,575 feet. On October 25, 1922, Hop-son sold to D. A. Brown the tract of land on which the cypress logs cut by Kammerman were situated. After Brown purchased the land, Kammerman undertook to remove the logs, and Brown objected, and Kammerman instituted this" action in replevin against Brown to recover the logs or their value. .

Brown denied that Kammerman was the owner and entitled to the possession of the logs. In addition to the above, there was testimony on behalf, of Kammerman tending to prove that there were 11,575 feet of cypress logs on the land, worth from fifteen to eighteen dollars per thousand feet.' There was also testimony to the effect that the logs were damaged, and that four or five dollars per thousand feet would be a reasonable market value- of the logs on the land' at the time Brown purchased the same from Hopson. Brown testified to the effect that, at the time he purchased the land from Hop-son, Hopson told him that Kammerman’s time for cut-, ting the logs was out, and exhibited to Brown the contract he had with Kammerman. (Witness told "Kammer-man that he could have all the logs that he had cut and left on -the- land, except the cypress. All the logs except the cypress were .on the land still. Witness hauled the ■cypress logs-' and: scaled them,; there being; something ••■over lQ;000.feet. At the time he bought the land from :Hopson fhere< were 35-,or '36 big.trees standing "on the *280land, and there was a strip that lacked 20 or 30 feet of being all slabs. Other witnesses corroborated Brown’s testimony to the effect that there was a strip left on the land that had not been slashed in the fall of 1922, abont 20 or 30 yards wide. Hopson corroborated the testimony of Kammerman to the effect that, after the time for the slashing of the timber nnder the. contract had expired, he agreed with Kammerman to extend the time. At the time he sold the land to Brown he showed Brown witness’ contract with Kammerman and told him abont the extension. Witness didn’t know, when he sold the land to Brown, that any logs were left there. If Kam-merman said anything abont logs being there, witness didn’t remember it. When Brown was negotiating with the witness to bny the land, he asked witness if he was buying everything that was there, and witness told him, “Yes.”: At. the time Brown bought the .land witness didn’t consider his contract with Kammerman had anything to do with it, except to show Brown the time that it expired. Hopson further testified that, at the time he sold the land to Brown, he didn’t claim title to the logs that had been cut on the land.

. Kammerman testified in rebuttal that Hopson’s foreman inspected the work witness had done in slashing the land, and told witness -that it was all right.

The court told the jury, in its instruction No. 4, that “if you find for the plaintiff, you find for him the value of the' cypress logs at the time the suit was brought.” The appellant duly excepted to the giving of this instruction. ,The defendant asked the court to instruct the .jiiry to the effect that, if they found for the plaintiff, they should find for him in such‘sum as they believed from a preponderance of the evidence was the fair and reasonable market value of the -logs at the time the claim Was made to them by the defendant, and that the reasonable market value would mean the value at the time of the taking as "they lay on the ground where they were claimed by the defendant, and'didn’t mean the value of *281the lumber which might be cut from the logs. The court refused the defendant’s prayer, to which ruling the defendant duly excepted. The jury returned a verdict in favor of the plaintiff below in the sum of $100. Judgment was entered in plaintiff’s favor against the defendant for that sum, from which is this'appeal.

1. The appellant contends that the contract under which the appellee claims title to the logs in controversy did not evidence a sale of timber to the appellee, but was a mere contract of employment, and therefore appellee had no title to the logs and no right to remove the same after May 1,1922. We do not agree with learned counsel in this construction of the contract. The contract expressly provides: “Hopson has agreed to sell to the said Hammerman all the merchantable timber on the north half of SW14 section 4, T. 21 N, R. 4 E., * * * such timber to be cut and removed by May 1, 1922.” True, the contract specified that the consideration for the sale was certain work to be performed by Kamm'er-man by a certain day, and, in the event the work was not performed within that time, then the grantee, Hammer-man, could pay to the grantor, Hopson, as an alternative consideration, -the sum of $4 per acre for the timber on or before the date mentioned.

The undisputed evidence in the case shows that the appellee, the grantee^ had paid the purchase price, or consideration, for the timber in controversy to- his grantor, Hopson, by his labor, and that Hopson, the grantor, had accepted this consideration before he sold, the land to the appellant Brown. The timber in controversy, as we understand the testimony, was felled by the appellee before May 1, 1922, but was not removed until after that time. , But the grantor, Hopson, agreed with the appellee to extend the time so far as the removal of the timber was concerned. Thus the contract for the sale and purchase of the timber between the grantor and the grantee was completed before the land on which the timber was situated was sold to the appellant Brown. *282At the time Hopson, sold the land to Brown, Hopson had • no title to the timber -in controversy which he could convey to Brown. At that time the timber had been felled-by the appellee. It was personal property, and appellee had paid the consideration, which had been accepted by the vendor of the timber, and an extension' of time granted by him to the appellee to remove the timber after May 1, 1922. ■

In Indiana & Arkansas Mfg. Co. v. Eldridge, 89 Ark. 361-367, we said: “In this case the contract of sale must be construed as an entire instrument, and. we think that the words ‘cut and-remove’ in the connection.-in which they are used, mean a severance from the soil. It necessarily follows that, when severed from the soil by the grantee, the timber becomes its personal property, and subject to the law concerning personal property.”

In Griffin v. Anderson-Tully Co., 91 Ark. 292, we held (quoting syllabus): “Under a contract fob the sale of growing timber, whereby the grantee is authorized to cut and remove timber within a certain period of time, the title to timber cut by the grantee within such period, but not removed from the land, passes to such grantee, together with a right for a' reasonable time thereafter to remove the timber.”

Here, as we have seen, the time was extended by mutual agreement between the grantor and grantee for the removal of the timber beyond the time specified in the written contract. Under the doctrine-of the above eases, the title to the timber in controversy was unquestionably in the appellee. ■

2. The appellant next contends that the court erred in the admission of testimony and in its rulings on prayers for instructions concerning the value of the logs in controversy. The''testimony on beljalf' of the appel-lee was to the effect that the logs in controversy had no market value at their location whén replevied: But there was testimony tending to show that they had á market value when removed from the lands and taken to *283the nearest market to be sawed into- lumber. The court did not err in permitting the testimony as to such market value.

In Clear Creek Oil & Gas Co. v. Bushmaier, 165 Ark. 303, we said: “If there be no market value at the place of delivery, the value of the goods or other product should be determined at the nearest place where they have :a market value, deducting the extra expense of delivering them there. The prices prevailing at the nearest place where the product can be sold, less transportation and distributing charges, show the value of .such product at the place of delivery as nearly as it is possible to show such value.” As the appellant refused to allow the appellee to remove his logs, and thus compelled the' appellee to institute'suit against him, the court did not err in instructing the jury that they should find for the appellee the value of the logs at the time of the institution of the suit, and did not err in refusing the prayer of appellant for instruction on the issue of value.

While instruction No. 4 given by the court was not as full and accurate as it should have been, yet it was not inherently erroneous, ' and there was no specific objection made to it. In the absence of such objection, there was no prejudicial error in giving it. In view of the undisputed evidence on the subject of ‘value, it could not have misled the jury. There was ample testimony to sustain the amount of the verdict as fixed by the jury.

We find no reversible error in the record, and the judgment is therefore affirmed.