195 S.W. 1180 | Tex. App. | 1917
The witnesses John F. Butcher and Miss Wheeler, who were present when the contract in suit was made, would have testified, if the court had not sustained the appellee's objection thereto, that the parties to the contract, during the negotiation, discussed and agreed that "saw timber" meant and described only growing timber 14 inches or over at the small end and at least 12 feet in length. The words "saw timber," as used in the contract, are words of description of the subject-matter of sale, and have no legal signification, and it was proper to hear evidence to enable the jury to know in what sense the parties to the contract used the words. Kelly Roberts v. Robb,
"Anything at all that I considered would measure 10 inches at the stump was merchantable saw stuff for our plant, though now I would say that I could not go to work and saw that would be a standard merchantable rule. * * * When I go out to estimate a bunch of pine timber I look for 10 inches and better, but as to whether that would be every man's practice or not I could not say. * * * We consider timber that will scale 8 inches saw timber."
And the evidence of other witnesses goes to show respectively that timber scaling at the stump 6 inches, 8 to 10 inches, and 12 inches constitutes "saw timber" was 14 inches and above that at the stump. In this state of the evidence there was no certain and established local usage of the term "saw timber," and the evidence as to size of timber that the parties themselves had in mind *1181 and understood at the time of the contract was to be cut as "saw timber" was, it is concluded, admissible to explain the meaning the parties attached to the words "saw timber." In view of the record there was reversible error, it is believed, in not admitting and allowing the jury to consider the evidence complained of.
The judgment is reversed, and the cause remanded for another trial.