April 22, 1924. The opinion of the Court was delivered by Action upon a note executed by the defendant to the plaintiff, dated January 12, 1920, due January 1, 1921, for $375, with interest at 8 per cent. after maturity until paid, and 10 per cent. attorneys' fees.
The defendant admits the execution of the note, which he alleges was given for the standing timber upon 22 1/2 acres of land belonging to the plaintiff; and alleges that the consideration therefor has failed, by reason of the fact that thereafter the plaintiff sold said tract of land to another without reserving the timber; he also alleges (what has been treated as a counterclaim, although defectively pleaded) that by reason of the fraud and deceit of the plaintiff in selling the timber to the defendant, and afterwards selling the land to another without reserving the timber, the defendant has been damaged in the sum of $500.
The undisputed documentary evidence in the case establishes the following facts: (1) On October 15, 1919, the plaintiff, Alexander, bargained the 22 1/2-acre tract of land to one McLaughlin, reserving all wood and timber thereon, with the right of removal limited in the seller to January 1, 1921. (2) On January 12, 1920, Alexander sold to the defendant, Foster, all of the wood and timber upon said tract of land for $375, and received from him, as representing the purchase price, the note sued upon in this case, described above, with the right of removal limited in the buyer to January 1, 1921. (3) On the same day, January 12, 1920, McLaughlin having transferred his executory contract described above to one Littlejohn, Alexander conveyed the 22 1/2-acre tract to Littlejohn, reserving all wood and timber thereon, with the right of removal limited in the seller to January 1, 1921.
The plaintiff admits that he sold the timber on the 22 1/2-acre tract after he had made the contract with Foster, and claims that he did so under the following circumstances: That about the middle of February, 1920, after the plaintiff had conveyed the land, reserving the timber, to Littlejohn, *Page 252 the latter, although he was advised of the trade the plaintiff had made with Foster, objected to Foster's cutting the timber and hauling over the land, and, in order to harmonize matters between Littlejohn and Foster, the plaintiff proposed to sell the timber to Littlejohn at the same price, provided he could get Foster to cut the timber upon another tract which the plaintiff owned; that he carried Foster to the other tract, showed him the timber he proposed to substitute, and that he and Foster verbally agreed to the substitution; that relying upon this verbal agreement, he sold the timber to Littlejohn about February 15, 1920; that on March 18, 1920, he indorsed upon the contract which he had made with Foster on January 12, 1920, the following agreement, which was thereupon signed by Foster:
"I hereby agree to accept wood for note in this contract, at the rate of $2.75 per cord on stump, on lands of C.B. Alexander, known as part of the W.B. Fowler lands, purchased from J.E. Johnson by C.N. Alexander. Other conditions to remain same. This in lieu of wood described in the original contract."
The evidence for the defendant tended to show that, soon after entering into the contract of January 12, 1920, the defendant got together his wagons and a number of woodcutters and sent them into the woods on the 22 1/2-acre tract; that Littlejohn, with a shotgun persuasion, ordered them off; that he reported the matter to Alexander, but could get no satisfaction (Littlejohn claims that this ejection was made after he traded with Alexander for the timber); that the substituted tract contained no pine timber at all, scarcely; was further from the market, and practically inaccessible for the truck which he had bought for the purpose of hauling wood from Alexander, and paid him $1,800 for it; that he never signed the alleged agreement of March 18, 1920, never saw it until it was produced in Court. The defendant did not cut a stick of timber upon either place. *Page 253
The jury returned a verdict in favor of the defendant of $250 upon his counterclaim and the plaintiff has appealed.
It is not deemed necessary to consider any of the exceptions other than the ninth, tenth, eleventh, and twelfth, which assign error in charging substantially that the plaintiff was not entitled to stand upon the alleged modification of March 18, 1920, in the absence of a provision therein that the note sued upon was covered thereby. Let these exceptions be reported. The plaintiff was clearly entitled to the sixth and seventh requests, as set out in exceptions 9 and 10; and the modification of the seventh request, as set out in exception 10, was erroneous.
The main point of controversy in the case was the execution of the alleged modifying agreement of March 18, 1920. If its execution had been established, its construction was a matter of law for the Court to determine. That construction clearly should have been that, instead of the timber on the 22 1/2-acre tract, the defendant agreed to accept as much on the other tract at $2.75 per cord as his note for $375 would buy, 136.36 cords. It will be observed that the agreement of March 18, 1920, if valid, made two important alterations in the original contract. The original contract provided for all the timber on a certain tract at the price of $375; the substituted contract provided for a part of the timber on a different tract, at the same price; and referred specifically to the note for $375 which had been given. Hence it is obvious that, if the later contract altered only the place and the quantity, leaving, as it provides, other terms of the contract intact, the consideration of the later contract was the note.
The effect of the charge was to annihilate the plaintiff's contention, regardless of the vital issue of the execution of the later contract.
The judgment must be reversed, and a new trial had; it is so ordered.
MESSRS. JUSTICES WATTS. FRASER and MARION concur. *Page 254