
    Catherine McNeil, Respondent, v. Daniel Hall, Appellant.
    
      Contract for the sale of timber—provision that, after a specified date, the vendee “has no further right on said pi'emises or in any timber left thereon,” construed — equitable defense not available in an action at lorn.
    
    The owner of a tract of timber land entered into a contract whereby she sold to another party for a specified price, payable in installments, all timber standing on the land over six inches in diameter. The contract contained the following clause : “ Party of the second part further agrees to draw all the said timber 'off the lot on or before April 12th, 1903, after which date he has no further right on said premises or in any timber left thereon. * * *”
    
      Held, that whatever the nature of the vendee’s title to the timber cut upon the lands he had tip interest in timber which had been cut upon the lands prior to April 12, 1903, but which remained thereon after that date;
    That the word' “ timber,” used in the following clause of the contract, viz.: “ After which date he has no further right on said premises of in any timber left thereon,” referred to timber already cut and' not to standing timber;
    That in an action at law, pure and simple, any equities which may exist in the plaintiff’s favor are not available.
    Appeal by the defendant, Daniel Hall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 22d day of November, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 10th day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced- on the 31st day of May, 1903, to recover damages for the alleged conversion of a quantity of logs which were skidded and on premises belonging to the defendant, which logs the plaintiff claimed to own and to be entitled to the possession of. The defendant denied such ownership and right of •possession and refused to surrender the property after demand duly made. The ownership and right of possession of the plaintiff was the only issue presented by the pleadings or by the proof. The value of the logs in question was conceded to be $1,300. Upon the trial there was no dispute as to the facts, and at the close of the evidence the defendant moved for a nonsuit which was denied, and upon plaintiff’s motion the court directed a verdict in' her favor for $1,300, besides costes, to both of which rulings defendant’s counsel duly excepted. Judgment was entered accordingly, and from it and the order denying defendant’s motion for a new trial this appeal is taken which involves only questions of law arising upon a conceded state of facts.
    
      F. A. Robbins and Charles W. Stevens, for the appellant.
    
      Vernon Cole and Shire & Jellinek, for the respondent.
   McLennan, P. J.:

On and prior to the 12th day of April, 1901, the defendant was the owner of four parcels of land situate in Livingston county, N. Y., on which was a quantity of standing pine, hemlock and hardwood timber. On that day the defendant, as party of the first-part, entered into a written contract with one J. F. Dieffenbacker, party of the second part, by which said party of the first part agreed to sell the second party all the timber which was over six inches in diameter two feet from the ground, standing on said four parcels of land, for the sum of $5,000. The second party agreed to purchase the same at the price named and to pay such purchase price in five installments, the amount of each and the time and manner of making the same being clearly stated; The contract further provided:

“ The party of the second part, it is expressly agreed, shall not cut any timber on the lot, until the second payment above mentioned is made, neither shall he draw off any of the bark cut upon the land, until the third payment of $2,000 is made, nor draw off any of the timber or logs until the fourth payment of $1,000 is made, and after that he agrees to leave upon the lot at all times sufficient timber or logs to secure the payment of the last installment.

“ The party of the first part expressly reserves the title to all of said lumber and bark and lumber made therefrom until the respective sums above mentioned have been fully paid, the party of the second part having the right to enter and cut and prepare the same, but has not the right to move any of the said timber from the premises until the moneys above mentioned have been paid in the manner and times heretofore stated.

“ In case the party of the second part neglects or refuses to make the payments, or any of them as above provided, then it is agreed that the party of the first part may retain, all sums that the party of the second part has paid hereon as liquidated damages for the breach of said contract, as well as all work and timber cut, and the rights of the party of the second part under this contract shall then cease and determine. * * *

“ Party of the second part to have the privilege of putting a mill on the lot to saw the lumber if he so elects, and in that case he agrees to use all proper diligence to protect the said premises or adjoining lands from damage by fire and to rebuild or replace or pay the value of all fences burned by reason of the acts of his agents and servants under this contract.

“ Party of the second part further agrees to draw all the said timber off the lot on or before April 12th, 1903, after which date he has no further right on said premises or in any timber left thereon. * * *

This agreement to bind the heirs, executors, administrators and assigns of the respective parties.”

■ It is conceded that by mesne assignments the plaintiff at the time of the commencement of this action was vested with all the title, rights and interest in and to the logs in question which Dieffenbacker would have had if no assignment had been made by him and he had done and performed all the acts which the several assignees or any of them did in the premises.

Soon after the execution of the contract/ referred to, Dieffenbacker or one of the several assignees entered upon the premises of the defendant, and in due time and before the 12th day of April, 1903, the time when it is alleged such, contract expired and the vendee’s rights thereunder terminated, had cut all the timber into logs, had fully paid the purchase price as specified in the agreement, liad peeled and removed from the premises all the bark and all the logs,- with the exception of those which are the subject of this litigation. Those were cut and skidded, but remained on defendant’s premises after such date, and soon thereafter the plaintiff moved a portable saw mill onto defendant’s premises, set it up and prepared to saw the logs in question. When the plaintiff was ready to commence such operations, the defendant asserted that the logs were his because allowed to remain upon the premises after the time specified in the contract, and forbade the plaintiff from in any manner interfering with or taking possession of the same. Upon it being suggested to him by an agent or employee of the plaintiff that if such was his claim or attitude he should have made his position known before arrangements were completed for sawing the logs, his answer was that he had not consulted counsel, and in substance that he was not sure what his rights were in the premises. At all events he refused to permit the plaintiff to take possession of the logs after demand duly made upon him, and thereupon this action was brought.

It is apparent that plaintiff’s right to recover, if it exists, must be found in the written instrument. This is an action at law pure and simple,, and any equities which may exist in plaintiff’s favor are not available here. Therefore, the suggestion is unimportant that in equity the defendant should be held to be equitably estopped from asserting title to the logs after, with his knowledge and without protest from him, the plaintiff incurred the expense of moving and setting up a portable mill on defendant’s premises with which to manufacture the logs in question. Nor is there any proof of any act done by the defendant from which an express or implied extension of the contract could be found. Presumably, when the plaintiff moved the saw mill onto defendant’s premises, she knew as well as he did that the time limit expressed in the contract had expired.

\ The defendant was not called upon to forbid such action on her part until fully advised of his rights in the premises. No consent to her acts is claimed to have been given by him. Therefore, as above suggested, the rights of the parties must be measured by the provisions of the written contract.

It is the contention of the appellant that the sale of the timber in question as evidenced by the written agreement was a conditional sale; that the title thereto did not pass upon the execution of the contract or upon the payment of the purchase price, nor unless the timber was cut and the logs removed prior to the 12th day of April, 1903; that the removal as well as the payment was a condition precedent to the vesting of title in the vendee; that if payment was made according to the terms of the agreement the vendee had the right to remove at will within the specified time; that upon such payment being made the title vested, subject, however, to being divested in case removal was not made within the specified time.

This, we think, is the fair interpretation of the. meaning of the agreement. .

It is claimed by the respondent that, upon the payment of the' purchase- price, the title vested absolutely in. the vendee named in the contract or in his assign,, and that the words in the. contract to which attention has Been called ought not to be construed in such manner as to reinvest the defendant with such title, or so as to create a forfeiture in his behalf in any timber which was not removed within the time in which it was agreed it should he.

It is unnecessary to determine the. precise nature of the title which the vendee acquired in the first instance by virtue of the contract, because,, almost in express language, it provided that, he should be prevented from asserting such title_,, whatever its- nature, to any logs, which remained upon defendant’s premises after the 12th day 'of April, 1903. He. agreed that he would not. exercise any acts of ownership or dominion over such logs after that date. The contract is not ambiguous; language could hardly express, an intention more plainly than does the. sentence to which attention has been called, viz. : “ Party of the second part further agrees to draw all the said timber off the lot on or before April 12th, 1903, after which date he has no further right on said premises or in any timber left thereon.”

Clearly the word “ timber ” as used in the first clause of the sentence has reference to timber already cut,, and there is no basis, for holding that, the word timber ” as used in the last clause has a different meaning and. refers to standing timber. The vendee agreed to draw, all timber before a certain date and lie agreed to forfeit his right to all. timber left on the premises after such date.

■ An examination of the entire, contract, and especially of the provision last referred to, leads to tire conclusion that it was the. intention of the parties that all timber, logs or bark which the defendant sold, whether cut. or uncut and which' remained on the premises after the 12th day of April, 1903, should become the absolute property of the defendant, and that such intention was clearly expressed by the language used in the instrument, and, therefore,, the plaintiff ceased to have any right,, title or interest in or to the logs or timber in question after said date.

A contract very similar to the one under consideration was construed in the case of Boisaubin v. Reed (2. Keyes, 323), and it was held in substance that the parties by contract having fixed the time within which the vendee, might enter upon- the-'land and carry away the timber, that after the expiration of such term the vendee liad no right to enter upon the vendor’s land for the purpose of removing the timber; and in that case the court said: “The vendee has no title to the timber by cutting logs and leaving them upon the land, but to complete his title he must also remove the logs within the term.” To the same effect is Kellam v. McKinstry (69 N. Y. 264) in which a very exhaustive opinion is written by Judge Miller, in which the case of Boisaubin v. Reed (supra) is cited with approval. (See, also, Inderlied v. Whaley, 65 Hun, 407; Grange v. Palmer, 56 id. 481.) In the latter case also the case of Boisaubin v. Reed is referred to with approval and it is said that the soundness of the proposition as stated by the court in that case cannot be questioned.

It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide event.

All concurred.

Judgment and order reversed and' new trial' ordered, with costs to the appellant, to abide the event.  