91 So. 74 | Ala. | 1921
The appellee filed this bill against appellant, the court below overruling defendant's demurrer to the amended bill and parts thereof. The appeal followed that action. The amended bill was the result of a substitution, for the original bill, filed September 9, 1920, its subsequent amendment eliminating paragraphs 4 and 5 of the substituted original bill. Another feature of the amended bill was eliminated by this fact, thus stated in the court's opinion:
"Complainant does not insist upon a reformation of the contract, and therefore it will not be further considered."
Referring this affirmation to the occasion of the hearing on demurrer to the amended bill, the practical effect was to render wholly unimportant any design to secure relief through reformation of the contract, reproduced, so far as presently material, in the statement of the case; and hence the appellant (defendant) has nothing of which to complain in that particular.
The theory and design of the amended bill, filed by the lessor against a sublessee, is to have the contract construed with respect to the time in which it permitted the extraction of turpentine and to prevent waste of the standing pine timber, so let for turpentine purposes and product, from which the substance should be extracted; the original parties, as well as the sublessee, being all along aware, it is averred, that the owner, the complainant, was a manufacturer of timber into lumber from pine stock, was engaged in the business, and held the standing pine timber so let for the ultimate purpose of converting it into merchantable lumber.
Manifestly, the instrument in question is a lease, in a sense a grant, of the particular substance produced by standing timber. Milliken v. Faulk,
A blank form was used by the parties in constituting this instrument. The words prescribing that the "cutting" should begin "in the fall of 1911" were inserted in handwriting. To the extent these words modify or contradict other terms printed in the form, the written, interpolated words are accorded a controlling effect in the construction of the whole instrument. Denson v. Caddell,
The only conflict between the interpolated expression and the printed terms (quoted in the statement ante) is with respect to the commencement of the work, the "cutting". The printed requirement was general, did not prescribe the time the beginning should be made, and did not require the cutting to be begun, in the fall of 1911, upon each separate tract or upon every productive tree on the whole area (over 3,000 acres) or every productive tree on separate tract. The prescription of a "term of four years" is referable as a limitation, to the lessee's or sublessee's right to extract turpentine from a "portion" of the subject of the lease, "beginning with reference to each portion thereof from the winter that the boxing and working of each portion is commenced." *511
This period (4 years) was designed to fix the time the lessee was allowed to appropriate the resin from that separate "portion" or tract on which "boxing," etc., had been done, the period (4 years) to begin — as far as that "portion" or tract was concerned — from the winter any part or number of the trees on such "portion" or separate tract were cut and prepared to produce turpentine, a seasonable "crop." In view of the terms of the entire instrument, the subject-matter of the contract, and the circumstances surrounding the parties, it is unreasonable to suppose that the parties entertained the purpose to invest the lessee or any sublessee with the unrestricted discretion, after "beginning in the fall of 1911" to prolong the right to take the turpentine, even for 20 years after 1911, by initiating the 4-year period prescribed with reference to the boxing or cutting, for turpentine purposes, of each tree on so great an aggregate area. Unless the construction indicated is adopted, the only alternative is the acceptance of that unreasonable interpretation. It is always presumed that parties intend to make a reasonable, rational contract. Only the terms they employ can invite or justify a conclusion to the contrary. Birmingham Water Works Co. v. Windham,
From these considerations it cannot be affirmed as upon the averments of the amended bill that the lessee's or sublessee's right to take turpentine from a particular separate "portion" or tract or tracts has terminated, that depending on when the cutting was begun on a separate tract or portion, the stipulated 4-year period commencing to run when "the cutting" of the separate tract or portion was made. The amended bill avers that the "cutting" was commenced, as the contract required, in the fall of 1911. The tract (at least one) on which this "cutting" was begun was subject to the stipulated 4-year limitation, and hence expired with the season of 1915. If the "cutting" was then (1911) begun on two or more separate tracts or portions (of the large area), the right to work such tracts or portions expired with the season of 1915. The averments of the bill are not sufficiently discriminative to permit a pronouncement with respect to the expiration of the right to take turpentine from separate, definitely described tracts.
The allegations of the bill, too elaborate to justify their reproduction, efficiently invoked the court's jurisdiction to prevent waste. So the court below decided. Woolworth v. Nelson,
The bill is not multifarious.
The action of the court in overruling the demurrer is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.