194 F. 817 | 4th Cir. | 1912
On the 17th of December, 1906, J. Mid-dleby, Jr., and Katherine Middleby, his wife, executed a deed of conveyance to the Broad River Lumber Company of several parcels of land in the counties of Rutherford, Cleveland, Burke, and McDowell, in the state of North Carolina, which several tracts were warranted in the conveyance to contain not less than 20,000 acres. The conveyance also included a certain amount of personal property, viz., mules, oxen, wagons, carts, traction engines, with three sawmills, machinery,
“It is furtlier understood and agreed between tbe xiarties to this deed that the said parties of the first part warrants and guarantees that there shall be not less than one hundred million feet of merchantable standing timber on the land hereinbefore described. If there should be less than one hundred million feet of such merchantable timber, then the parties of the first part bind themselves, their heirs and assigns to pay to the said party of the second part, its successors or assigns, the sum of $2.00 per thousand feet for such deficiency. Or if there shall be an excess of one hundred million feet of standing merchantable timber on the said lands, then the said party of the second part hereby binds itself, its successors and assigns to pay to the said parties of the first part, their heirs or assigns the sum of $2.00 per thousand feet for such excess.”
The purchase price of all the property mentioned in the deed of conveyance was $150,000, of which $10,000 was paid in cash, and the balance was represented by notes for the aggregate of $140,000, which was secured by a mortgage which was executed on the same day as the deed of conveyance. The proceeding before the court was initiated by a bill of complaint in equity alleging that the land conveyed contained much less than 100,000,000 feet of merchantable standing timber, in fact contained, as alleged in the bill of complaint, only 64,000,000 feet, and the complainants therefore claimed that they were entitled to a credit of $2 per thousand feet upon the deficiency, or a credit of $72,000 upon the notes given for the credit portion of the purchase money. The proceedings having been completed by answer and replication, on the 6th of October, 1907, a consent decree was entered requiring the complainants to pay all the credit portion of the purchase money secured by the mortgage, including the note maturing February 1, 1908, with interest, leaving still unpaid $75,000 of the principal of the notes as secured by the mortgage. The consent decree further provided that the case should remain upon the docket as a cause in equity in order to determine the amount of merchantable standing timber on the land at the time of the sale, to wit, October 1, 1906, and it was referred to a master to take the testimony and report his findings of fact and conclusions of law to the court. The consent decree further provided that, if there should be found a deficit under 100,000,000 feet, then judgment was to be entered against the defendant for such deficit at the rate of $2 per thousand feet, and be credited on the amount unpaid of the purchase money. If the deficit should be greater than the balance of the purchase money unpaid, then it should be applied to the payment of the balance of the purchase money unpaid, and whatever amount of the judgment was in excess of the purchase money unpaid should be entered as a judgment against the defendant, and, if there should be found to be an excess over 100,000,000 feet of timber on the said land, the defendant Mid-dleby was to have judgment against the lumber company for the amount of such excess.
The effect of this consent decree was to put an end to all other questions in the cause and leave open simply the determination of the question as to the amount of merchantable standing timber on the land at the time of the sale, to wit, October 1, 1906. For any
The contract also provides that the several sawmills on the premises should be operated by Middleby after June 4, 1906, for the benefit of the purchasers until they could take control, but that all lumber already sawed or sawed prior to 4th of June, 1906, should belong to Middleby. It thus appears that this preliminary contract contemplated the payment of the purchase price of $150,000 accordingly as so many feet of lumber should have been cut; that is to say "“sawed” from the premises, which would show that the word “feet” as embraced in this contract meant feet as calculated upon timber that can be sawed or cut for purposes of lumber, and as estimated by what is commonly known as feet in board measure. The preponderance of the testimony also of the witnesses adduced, especially that of Dr. C. A. Schenck, an" expert witness put up by the defendant Middleby, was to the effect that the word “feet,” when applied in expressing the number of merchantable standing timber, meant such timber that would be measured in feet by a sawmill man. This from the testimony would mean board measurement. If the word “feet” as used in this contract be one of technical character, to establish the meaning of which the evidence of persons skilled in the vocabulary of the particular business is admissible, the testimony is that the word “feet”
The decree of tlie court below, therefore, must be modified so as to accord with this conclusion.