184 Ga. 352 | Ga. | 1937
(after stating the foregoing facts.)
Several issues were raised or referred to by the pleadings in this case. The court sustained demurrers to some of the allegations of the petition, and it is recited in the cross-bill of exceptions that demurrers to the answers were overruled. It is not easy to construe the several allegations assailed by the respective demurrers, for the purpose of determining the precise issues, exclu
The next question is whether the time limit of six months as stated in the same clause should be construed as a condition determining the estate, or as a covenant remediable in damages. The courts of the country are not in harmony in the construction of contracts conveying timber for a limited time. In 38 Corpus Juris 163, § 41, it is stated: “According to the weight of authority, a deed or contract for the sale of standing timber which limits the time for the cutting and removal thereof operates as a sale only of so much of the timber as is removed within the time limited, and confers no authority to remove it after the expiration of the time specified, unless the time is extended by agreement, or unless the failure to remove is caused by the act of God, or by the act of the seller.” In the same connection it is further stated: “Where the time within which the cutting and removal is limited in the conveyance or the contract of sale, time is generally regarded as of the essence of the contract. The view is taken that
The previous decisions by this court, beginning as far back as Morgan v. Perkins (1894), 94 Ga. 353 (21 S. E. 574), have consistently followed the majority rule. A concise decision applying the rule is found in Jones v. Graham, 141 Ga. 60 (80 S. E. 7). An owner of timber situated on two designated lots sold it under a contract “allowing” to the purchaser four months from date “in which to get the timber off of” one lot and “two years in which to saw and remove the timber from” the other lot, “with all necessary rights of way to get the timber,” the purchaser “to take the timber on terms and conditions set out above.” This court held: “ Properly construed, this was a conveyance . . of an estate in the specified timber, determinable, however, on failure to sever it from the realty within the dates specified.” In Morgan v. Perkins, supra, a conveyance of timber was made in writing in
But the first and fundamental rule is to ascertain the intention of the parties, and to this end the whole instrument, together with its circumstances, must be considered. Under the rule prevailing in this State, the interest of the lumber company was clearly a defeasible one as regards the first clause, and it is hardly conceivable that a different right was intended by the second clause.
Coming now to the so-called cross-bill of exceptions as brought by the plaintiff, we will first call attention to the fact that this bill of exceptions contains much that is not appropriate or permissible in a cross-bill of exceptions. The plaintiff, having brought a bill of exceptions in the form and manner of a cross-
In the present case the judgment on the main bill of exceptions is affirmed; but the judgment complained of is merely an interlocutory injunction, which necessarily implies that the case will be tried before a jury in ordinary course. Does this affirmance “leave the case to be again tried in the court below,” within the meaning of the Code? Or does the quoted phrase merely contemplate, as in this case if the judgment were reversed, a new trial of the same type as that under review, to wit, a new interlocutory hearing? According to usual procedure, either the grant or the refusal of an interlocutory injunction will leave the case for trial before a jury. Does such a trial fall within the phrase of the statute as to leaving the case to be tried again in the court below ? See, in this connection, Southwestern Railroad Co. v. Smithville, 134 Ga. 432 (67 S. E. 936); Brookman v. Rennolds, 148 Ga. 721 (98 S. E. 543); Tift v. McCaskill, 171 Ga. 289 (4) (155 S. E. 192). The affirmance on the main bill in the present case does not leave the case to be tried again in the coqrt below on interlocutory heañng, but does leave it for trial before a jury. Assuming, without deciding, that this makes it proper to consider the cross-bill Of exceptions, we will proceed' to rule upon such of the assignments of error contained therein as are insisted on, so far as they may be treated as proper matter for a cross-bill of ex
By the first assignment of error, it is contended that under the evidence shown at the hearing the court should have granted a “permanent injunction,” as distinguished from an interlocutory injunction. This assignment of error is not referred to in the briefs, and will be considered as abandoned. Being so considered, we will not decide it. Nor will it be classified as being proper or improper matter in a cross-bill of exceptions. The fourth assignment of error is that the court erred in rejecting a letter from the lumber company to B. S. Miller, and in refusing to permit the addressee to testify orally in relation thereto. It is alleged that the court in rejecting this evidence withheld from consideration the definite fact of the establishment and location of the pond site, and that the evidence “should have been allowed and considered in connection with the affidavit of said Miller relative thereto and which [is] of file in the record in said case.” The letter has been referred to in the statement preceding this opinion, and is not more definite as to the “fact of the establishment and location of the pond site” than is the contract itself. The assignment refers to an affidavit of Miller which is of file in the record, but no such affidavit is discoverable in the record as transmitted to this court. It seems from recitals in the bill of exceptions that the testimony of Miller would have explained pencil notations on the letter, but the letter itself, as quoted in the bill-of exceptions, does not show any pencil notations, and it does not appear what testimony Mr. Miller would have given in reference thereto. Obviously the fourth assignment of error does not show any cause for a- reversal. In the sixth assignment of error, it is contended that “the affidavits of W. B. Mann, A. W. Smith, and C. Ii. Bliss which [were] filed and considered after October 12, 1936, were illegal, irrelevant, and had no bearing on the matters at issue.” This assignment relates to the same evidence which is mentioned in a previous recital of the bill of exceptions, to wit, that after the hearing “on October 12, 1936, and before the date of the order passed on November 5, 1936, defendants submitted to the court affidavits of W. B. Mann, A. W. Smith, and C. H. Bliss, to which
The other assignments of error, to wit, 3, 3 and 5, relate to orders (1) overruling demurrers filed by the plaintiff to the defendants’ answers, (3) sustaining demurrers of the defendants to portions of the plaintiff’s petition, and (3) the disallowance of an amendment to the petition offered by the plaintiff, wherein reformation was sought. As we understand these assignments of error from the record and the briefs of counsel, they do not relate to matters which could properly be assigned as error in the present cross-bill of exceptions, since they did not concern issues or questions relating to the judgment granting an injunction as to timber on the pond site, which judgment turned on a construction of the stipulation which imposed a time limit of six months and the sufficiency of the evidence to identify the pond site. Accordingly, the questions raised by these three assignments of error can not be decided under this bill of exceptions, considered as a cross-bill. Nor can we treat this bill of exceptions as an independent main bill of exceptions. It is perfectly clear that the plaintiff in error therein intended it as a cross-bill of exceptions. The plaintiff followed the provisions of the Code, § 6-809, and did not bring up any portion of the evidence or the record that was brought up by the opposite party. “The record in another ease could not thus be made available to this plaintiff in error, if the bill of exceptions thus sued orrt by [her] were treated as a main bill of exceptions, for it would be an entirely different case from that brought up by” the lumber company and its codefendant. Farns
Judgment affirmed on both bills of exceptions: