Price v. Tree Topper Timber Co.

California Court of Appeal Apr 16, 1962 No. Civ. 20180Published

Before: Agee

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Holding. The court held that the appellant's failure to comply with rule 4(b) of the Rules on Appeal by failing to state the points to be raised on appeal precluded it from challenging the sufficiency of the evidence. Furthermore, the court found the trial court's findings regarding the timber harvest were supported by sufficient evidence.

Issues

Whether the trial court was required as a matter of law to find in favor of the appellant regarding two disallowed items.
Whether the appellant's failure to comply with rule 4(b) of the Rules on Appeal precludes it from challenging the sufficiency of the evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We likewise hold that the failure of Coastwise to comply with the aforesaid rule 4(b) precludes it from presenting its contention that the evidence is insufficient to support the trial court’s finding as to Item One.”

“We conclude that the testimony of Johns, as summarized above, was sufficient to support the trial court’s finding as to Item Two.”

[413]

AGEE, J.

Plaintiffs (Coastwise) appeal from a money judgment in their favor and against defendant (Tree Topper) on the ground that two items sued for were disallowed and therefore not included in the amount of the judgment.

Coastwise held timber rights on nine separate tracts. About June 1, 1954, Coastwise and Tree Topper entered into an agreement as to these nine tracts which was thereafter reduced to writing about December 31, 1954. Under it Tree Topper agreed to pay Coastwise $8.00 per thousand board feet of timber cut and removed by it from the Blinn tract, with a minimum guarantee of four million feet, or $32,000.

On May 8, 1957, Coastwise filed this action against Tree Topper to recover money claimed to be due under the agreement. The judgment rendered after a non jury trial allowed Coastwise a recovery of $1,914.77, that being the difference between the $32,000 minimum guarantee on the Blinn tract and the $30,085.23 paid thereon by Tree Topper; it also allowed Coastwise a recovery of $4,942.02 on the MaynesMorris tract and $107.17 on the Dailey tract; a setoff of $847.66 on the Hargus tract and of $4,000 on the Stansberry tract was allowed to Tree Topper. A judgment of $2,116.30 in favor of Coastwise resulted from the foregoing figures, plus $650 attorney fees as provided for in the agreement.

The only contention raised by Coastwise on this appeal is that the trial court was required as a matter of law to find in its favor as to two items disallowed.

Item One is based on the allegation that Tree Topper harvested a total of 4,814,093 board feet of timber from the Blinn tract and that the excess over 4,000,000 board feet is chargeable against Tree Topper at $8.00 per thousand feet, or $6,512.74. The court found this allegation to be untrue.

Item Two is based on the allegation that, in breach of the written agreement, Tree Topper failed to harvest all merchantable saw or better timber on the Blinn tract and left unharvested thereon in excess of 1,200,000 board feet of such timber, thereby damaging Coastwise in the sum of $9,600. The court found this allegation to be untrue.

The record herein comes up on a partial transcript and contains only the testimony of Mrs. Blinn, the owner of the Blinn tract, and Claude M. Johns, Jr., one of the Tree Topper partners. Coastwise bases its claim as to Item One entirely upon the testimony of Mrs. Blinn, saying that she was unimpeached and that the trial court was required to find in

Price v. Tree Topper Timber Co.

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AGEE, J.

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