91 So. 864 | Miss. | 1922
delivered the opinion of the court.
The appellees as plaintiffs in the circuit court sued and recovered judgment against the defendant lumber company for the breach of a contract to pay the plaintiffs six dollars a cord for all paper wood on certain lands owned by the plaintiffs. This land was a sixteenth section. In 1918' the plaintiffs purchased the merchandise timber from ‘the board of supervisors and also from the lessee of the lands. The paper wood timber sold to the defendant was pine timber from three inches in diameter up to eight inches. Also the tops of trees already cut of this diameter were included in the sale.
While there are a number of assignments of error in the record, it is only necessary to consider one, and that is whether or not this small timber from three to eight inches in diameter is merchantable timber. If it is, then the plaintiffs owned this timber; if not, then- the plaintiffs had no title to it and their cause of action must fail. The un-contradicted testimony in the case shows that several years previous to the purchase of this timber by the plaintiffs there was a market price in this locality for paper wood
On behalf of the plaintiff the court instructed the jury upon this question as follows: “The court instructs the jury for the plaintiffs that the Avord ‘merchantable’ means anything that is marketable, sound, and undamaged for the purpose for Avhich such article is to be used, and for Avhich there is general demand on the open market in the territory where such article is kept for sale or found; the court further instructs the jury that ‘merchantable pine timber’ does not necessarily mean only such timber as can be used for sawmill purposes, but it means any kind of pine timber for Avhich there is a general demand and market for commercial purposes in the territory Avhere such pine timber is.”
In the case of Kerl v. Smith, 96 Miss. 827, 51 So. 3, this court held that the use of the word “merchantable” in a contract, Avith nothing to explain Avhat kind of timber was meant, Avas not so accurate a designation of what was sold as to preclude investigation as to Avhat was meant by it in the contract.
Years ago, when practically the only use made of timber was to manufacture it into lumber, it was then held that merchantable timber Avas only those large sticks of wood squared or capable of being squared for building houses or vessels. Since Avhich time, hoAvever, the uses of timber have multiplied; among other things is iioav that of manufacturing small timber into paper. We have these paper mills scattered over the country, and in their vicinity there is ahvays a market price for this small timber which can be manufactured into paper. This is Avell expressed in the opinion of the court in the case of U. S. v. Stores, 14 Fed. 824, Avhere it is said: “But the numerous uses to which wood has come to be applied, and the general employment of all kinds of trees for some valuable purpose, has wrought a change in the general acceptation of terms in connection
Again in the case of U. S. v. Soto, 7 Ariz. 230, 64 Pac. 419: “Timber” includes “ all kinds of wood used either for building purposes or in the manufacture or construction of useful articles.”
“Merchantable,” as defined in 27 Cyc. 481, is “salable and fit for the market; sound and undamaged; .such as is generally sold in the market; vendible in the market.”
At the time the plaintiffs purchased this timber, the small timber was salable and had a market value as paper wood or pulp Avood timber; that is, timber suitable to be manufactured at a paper mill into paper. Under this testimony Ave therefore conclude that this small timber AA-as merchantable timber, and therefore the title to it passed to the appellees under their deeds.
We have carefully considered the other assignments of error and find no merit in them. The judgment of the' lower court is affirmed.
Affirmed.
