Waterman v. Morrel

Belcher, C. C. — This is an appeal from a judgment of nonsuit, and an order denying a motion for a new trial.

The action is based upon a written contract, executed September 23, 1881, by which the plaintiffs leased to the defendants certain timber land in the county of Santa Cruz, for the term of three years, and the defendants undertook to cut and manufacture into lumber all the redwood and fir trees standing on the land suitable for milling purposes.

It was provided in the contract that on or before the fifth day of each month, the defendants should render to the plaintiffs “ a full written account of all merchantable lumber shipped each day during the preceding month, and must, within ten days after such account has been rendered, pay or cause to be paid to said Waterman and Waterman, for each one thousand feet of merchantable lumber, the sum of $2.50 in gold coin.”

It was further provided that in case the defendants “should not manufacture the timber trees standing” on the land leased in the year 1881, then they should on the first day of January, 1882, pay to the plaintiffs “the sum of $2.50 per thousand feet on one third of all merchantable timber cut and shipped by them from their mill” on another tract.

It was further provided that plaintiffs should have the right to any part or the whole of the refuse lumber that might accumulate by manufacturing said timber into lumber, for the price of $7.50 per thousand feet, the [219]money to be credited by the plaintiffs to the defendants on the account for stumpage.

It is alleged in the complaint that the defendants had manufactured from trees cut on the demised premises, and had shipped, four hundred and fifty thousand feet of merchantable lumber, for which the defendants became indebted to the plaintiff's in the sum of $1,125, and that no part of that sum had been paid; that the defendants had failed to render any account to the plaintiffs of the lumber manufactured and shipped by them as required by the contract, and had failed and refused to let the plaintiffs have or take at their election “any part or all of the refuse lumber,” upon the terms and at the prices named in the contract.

The prayer is for judgment for the $1,125, and for $1,000 damages.

From the evidence, it appears that the defendants cut no timber and manufactured no lumber on the plaintiffs’ land in the year 1881, but they manufactured at the mill on their other tract such a quantity that they were required, under the terms of the contract, to pay to the plaintiffs on the first day of January, 1882, the sum of $1,225.88. This sum they paid to the plaintiffs on the thirty-first day of December, 1881, and took from them a receipt reading as follows:—