Davis v. Martin Stave Co.
168 S.W. 553
Ark.
1914
Check Treatment
Hart, J.,

(after stating the facts). Counsel for the defendant seeks to uphold the decree on the authority of Hearin v. Union Sawmill Company, 105 Ark. 455; but we do not think that case is an authority for him. There the deed conveyed “all the pine and oak timber ten inches and up.” It was contended by the seller that this did not embrace the old field pine which was on the land. Among the reasons given was, that at the time the timber deed was executed it was not profitable to cut old field pine. We held that the language of the deed aptly included every kind of pine on the land. There the deed did not purport to convey merchantable timber, but purported to convey all the pine and oak timber ten inches and up. Old field pine was covered by this description, and we held that, to allow the seller to show by parol proof that it was not so intended would be to contradict or vary the terms of the deed. There the description referred to the size of physical characteristics of the timber, and to have allowed parol evidence to show to the contrary would have contradicted the terms of the deed. Here the language of the deed is “all the oak timber suitable to make staves 'or stave bolts. ’ ’ The word ‘ ‘ suitable, ’ ’ as defined in the dictionaries, means: ‘‘Fit, proper or adapted.” So that it will be seen that the word referred not only to the physical characteristics of the timber 'but to its fitness for making staves and stave bolts. According to a preponderance of the testimony, it was not thought or understood in that community at the time the timber deed was executed that red oak timber was suitable for making staves and stave bolts. Moreover, the undisputed testimony shows that the plaintiff and the agent of the defendant who bought the timber for it both understood that red oak timber was not suitable for making staves and stave bolts and that only white oak timber and .its species was suitable for that purpose. The rule is that, where the contract contains-words of latent ambiguity or where technical terms are used or terms which by custom and usage are used in a sense other than the ordinary meaning of the words, oral testimony is admissible to explain the meaning of the terms or words used. Paepcke-Leicht Lumber Company v. Talley, 106 Ark. 400. In that case it was also said that every legal contract is to be interpreted in accordance with the intention of the parties making it; and usage, when it is uniform -and well settled, and is not in contradiction of the expressed terms of the contract, is deemed to form a part of the contract and to enter into the intention of the parties. As we have already seen, the plaintiff and the agent of the defendant who made the contract for it both testified that it was not their intention to include the red oak timber and that it was not considered suitable for making staves and stave bolts in that community at the time the contract was executed. It may be also said that a preponderance of the evidence showed that at the time the contract was executed red-oak timber, according to the custom of the community, was not considered suitable for making staves and -stave bolts and was not used for that purpose.

In addition to this, J. L. Jean, who acted as -agent for th-e defendant in purchasing the timber, testified that subsequent to the execution of the timber deed he purchased the timber from the defendant at the price it had paid for it. In other words, he testified he had an understanding' and -agreement with the Martin Stave Company that he would take the timber off of its hands at the price it had paid for.it. This contract was not in writing, but Jean stated that, pursuant to its terms, he cut the timber, which it was understood was embraced in the contract, and paid the defendant for it. His testimony in this regard is uneontradioted. So it may he said that the undisputed testimony shows that the defendant made a verbal contract for the sale of the timber which it had purchased from the plaintiff and that pursuant to its terms Jean took possession of the timber and paid the purchase money. The facts proved as to the payment' of the purchase money for the timber by Jean and the taking possession of the timber by him met every requirement of our decisions as to the part performance of a parol contract necessary to give Jean the right to specific performance. Arkadelphia Lumber Company v. Thornton, 83 Ark. 403.

Jean says that he did not demand any deed from the Martin Stave Company because he had cut all the timber from the land that he was entitled to under the deed from the plaintiff to the Martin Stave Company. The Martin Stave Company entered upon the land after it had made this contract with Jean and cut the red oak timber from it. It does not make any difference that Jean did not bring suit for 'specific performance as he was entitled to do. He is not making any claim to the red oak timber, and the Martin Stave Company is not entitled to the red oak timber, because, under the undisputed testimony, it had conveyed to Jean all the timber that it had purchased from the plaintiff. Therefore, it had no right to cut the red oak timber and is liable to the plaintiff for it. The undisputed evidence shows that the defendant cut seventy-five and one-half cords of red oak timber and that the value of this red oak was three dollars per cord. The chancellor should have found for the plaintiff, and for the error in not doing so the decree will be reversed, and inasmuch as the cause has been fully developed, a decree will be entered here in favor of the plaintiff for the sum of $226.50.