{
  "id": 8721273,
  "name": "Brown v. Kammerman",
  "name_abbreviation": "Brown v. Kammerman",
  "decision_date": "1925-03-23",
  "docket_number": "",
  "first_page": "278",
  "last_page": "283",
  "citations": [
    {
      "type": "official",
      "cite": "168 Ark. 278"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
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    "name_long": "Arkansas",
    "name": "Ark."
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    {
      "cite": "165 Ark. 303",
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      "reporter": "Ark.",
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        1379854
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    {
      "cite": "91 Ark. 292",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1511742
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      "case_paths": [
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    {
      "cite": "89 Ark. 361",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1515291
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      "case_paths": [
        "/ark/89/0361-01"
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  "last_updated": "2023-07-14T17:11:28.689459+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Brown v. Kammerman."
    ],
    "opinions": [
      {
        "text": "Wood, J.\nOn 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 was 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\u2019 some- of the logs o'n the land until he could conveniently get thein off, and Hopson said, \u201cThat will be all right.\u201d 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. .\nBrown 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\u2019s 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 \u25a0cypress logs-' and: scaled them,; there being; something \u2022\u2022\u25a0over lQ;000.feet. At the time he bought the land from :Hopson fhere< were 35-,or '36 big.trees standing \"on the land, and there was a strip that lacked 20 or 30 feet of being all slabs. Other witnesses corroborated Brown\u2019s 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\u2019 contract with Kammerman and told him abont the extension. Witness didn\u2019t 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\u2019t 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, \u201cYes.\u201d: At. the time Brown bought the .land witness didn\u2019t 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\u2019t claim title to the logs that had been cut on the land.\n. Kammerman testified in rebuttal that Hopson\u2019s foreman inspected the work witness had done in slashing the land, and told witness -that it was all right.\nThe court told the jury, in its instruction No. 4, that \u201cif you find for the plaintiff, you find for him the value of the' cypress logs at the time the suit was brought.\u201d 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\u2018sum 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\u2019t mean the value of the lumber which might be cut from the logs. The court refused the defendant\u2019s 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\u2019s favor against the defendant for that sum, from which is this'appeal.\nThe 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: \u201cHopson 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.\u201d 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.\nThe 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. At the time Hopson, sold the land to Brown, Hopson had \u2022 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. \u25a0\nIn Indiana & Arkansas Mfg. Co. v. Eldridge, 89 Ark. 361-367, we said: \u201cIn this case the contract of sale must be construed as an entire instrument, and. we think that the words \u2018cut and-remove\u2019 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.\u201d\nIn Griffin v. Anderson-Tully Co., 91 Ark. 292, we held (quoting syllabus): \u201cUnder 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.\u201d\nHere, 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. \u25a0\nThe 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 wh\u00e9n replevied: But there was testimony tending to show that they had \u00e1 market value when removed from the lands and taken to the nearest market to be sawed into- lumber. The court did not err in permitting the testimony as to such market value.\nIn Clear Creek Oil & Gas Co. v. Bushmaier, 165 Ark. 303, we said: \u201cIf 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.\u201d 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.\nWhile 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 \u2018value, it could not have misled the jury. There was ample testimony to sustain the amount of the verdict as fixed by the jury.\nWe find no reversible error in the record, and the judgment is therefore affirmed.",
        "type": "majority",
        "author": "Wood, J."
      }
    ],
    "attorneys": [
      "G. T. Blopdworth, for appellant.",
      "Oliver & Oliver, for appellee."
    ],
    "corrections": "",
    "head_matter": "Brown v. Kammerman.\nOpinion delivered March 23, 1925.\nLogs and ' logging \u2014 sale op timber. \u2014 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\u2019 upon his failure to- do the work the grantee to pay $4 per acre, held to be a sale of timber, and not'\u00e1 mere \u25a0 contract of employment. \u2022 1\nLogs and logging^-title to timber cut. \u2014 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.\nEvidence \u2014 market value op timber. \u2014 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.\nReplevin \u2014 market value of converted timber. \u2014 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\" valu\u00e9 at\u2019the tim\u00e9 the action of replevin was brought, and not at the time defendant claimed the timber was recoverable. .\nTrial \u2014 necessity of specific objection to instruction. \u2014 In replevin for timber .of ii\u00bfs 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.\nAppeal from Clay Circuit Court, Western District; G. E. Keck, Judge;\naffirmed.\nG. T. Blopdworth, for appellant.\nOliver & Oliver, for appellee."
  },
  "file_name": "0278-01",
  "first_page_order": 296,
  "last_page_order": 301
}