49 So. 248 | Ala. | 1909
The single complaint on this appeal predicates error of the rulings of the trial court in refusing the general affirmative charge to the defendant in the court below, appellant here. Defendant was the owner by assignment of a contract with plaintiff by which it had a right to cut all “merchantable” trees upon plaintiff’s land, “timber to cut 12 inches at the stump.” The evidence tended to support the contention that defendant had cut trees less than 12 inches in diameter at. the point of cutting. Appellant’s theory is that the stipulation quoted is meaningless and of none effect, or that it could just as well mean a stump 12 inches above the ground, or trees 12 inches in circumference. But we do not agree. The common intent of the parties was that the trees cut should be suitable for conversion into merchantable timber. Timber is such stuff as is suitable for building and allied purposes. Unless we affect to be ignorant of matters of everyday experience and observation, we must know that a tree 4 inches in diameter— diameter being approximately one-third of circumference — at the stump, or point where cut, squared, sawed, or otherwise prepared for use and the market, will not afford timber. The consideration, along with the context, gives unmistakable clue to the meaning of the stipulation in question. It related to the timber to be cut, ■and not to the useless stump to be left. It meant that the timber should measure not less than 12 inches in diameter at the point where severed from the stump.
Affirmed.
