34 S.E.2d 839 | Ga. | 1945
Lead Opinion
In this suit for injunction to restrain the defendants from interfering with the alleged right of the plaintiff's to cut and remove timber under a timber lease, the lease contract as properly construed granted the right to cut and remove all the timber of stated kinds and dimensions on the described tract of land, at and for a stipulated price per one thousand feet, subject only to the expiration of the lease on a date therein fixed, and did not limit the amount of timber that might be so cut and removed, as contended by the defendants.
Accordingly, upon the interlocutory hearing the judge erred in holding that the contract was ambiguous on the point at issue, and in admitting over appropriate objection the parol evidence offered by the defendants for the purpose of showing an intention of the parties that only a certain quantity of timber could be so cut and removed under the right granted; and it was also error, under the pleadings and the evidence, not to grant an injunction as prayed by the plaintiffs. Nor should the plaintiffs have been enjoined as was done on the prayer of the defendants.
McCann Lumber Company, a partnership, leased the timber in question from J. B. D. Paulk, as trustee, on March 1, 1943. On April 12, 1944, Glynn Lumber Company, a corporation, became the owner of the land subject to the lease, and successor to all rights of the lessor, through a conveyance of the land and an assignment of the lease by the lessor, J. B. D. Paulk trustee. *670
The material portions of the lease from J. B. D. Paulk trustee to McCann Lumber Company are as follows:
"This agreement made and entered into on the 1st day of March, 1943, between J. B. D. Paulk, of Glynn County, Georgia, as trustee for his wife and children, as the first party, hereinafter called the vendor, and McCann Lumber Company, a copartnership composed of W. F. McCann, J. Y. McCann, and Mrs. X. Y. McCann, all of Wayne County, Georgia, as the second parties, hereinafter called the vendees:
"Witnesseth: that for and in consideration of the sum of Thirty five thousand ($35,000) Dollars, and in consideration of the mutual covenants and agreements made, it is agreed between the said vendor and vendees as follows, to wit:
"1. The vendor owns the following described lands in Glynn County, Georgia, to wit: [the description of the land follows].
"It being distinctly understood that this lease applies only to timber on the west side of Buffalo Swamp on the property hereinabove described.
"2. The vendor hereby grants unto the vendees upon the conditions and terms herein stated a license to cut and remove the timber (either standing or on the ground) hereinafter described and located on said described lands, to wit: [the lands are again described here].
"(a) The gum and maple timber measuring 12 inches and up in diameter, 16 feet from the ground, number one (1) logs.
"(b) The cypress timber measuring 14 inches and up in diameter above the swell.
"(c) The pine timber measuring 16 inches and up in diameter breast high, with privilege to the vendees, at its option, of cutting down to 12 inches. The vendees to utilize all merchantable timber herein described.
"3. The said vendees are to pay to the said vendor $12.50 per one thousand feet, Doyle Rule. Standard logs 16' or less.
"4. The within lease shall terminate on the 31st day of December, 1946.
"5. The said vendor warrants the title to the said above described timber."
Paragraph 6 dealt with the right of ingress and egress and the construction and maintenance of roads, runways, and bridges. *671
"7. The vendee has paid to the vendor contemporaneously herewith the sum of eight thousand ($8000) dollars, to be applied as payment of said lease, and it is agreed that the vendor is to retain and hold back of said payment the sum of five thousand ($5000) dollars until there is only approximately $5000 worth of timber left to be cut on the within lease, at which time the cutting of the vendee hereunder is to be applied against said retained $5000; two thousand two hundred fifty ($2250) dollars of the said $8000 payment is to be added to the vendee's credit with said vendor on a certain prior lease dated July 28, 1941, and against said total credit the cutting on the within lease will be applied until said credit has been exhausted; then the said vendees will put up an additional $5000 with the said vendor, the further cutting to be applied until same is exhausted, and to continue making said $5000 deposits until same are exhausted, and to be credited as above set out, until there remains only approximately $5000 worth of timber to be cut under the within lease as hereinabove first provided for.
"The remaining $750 is to be retained by the vendor as a guarantee by the vendees that the C C C roads or fire lanes and bridges on the above-described premises are to be kept passable for automobiles during the term of this lease, and if the said roads and bridges are not in passable condition at the expiration of this lease, the vendees agree at the expiration of said lease to replace all roads and fire lanes in good condition, and if they do not do so, then the $750 or any part thereof is to be applied toward placing said roads and bridges in good condition."
Paragraph 8 of the lease related to hunting privileges.
McCann Lumber Company brought the present suit to enjoin and restrain Glynn Lumber Company and its agents from interfering with the right of the plaintiffs to cut and remove the timber under the lease, as it was alleged the defendants were doing by physical means described. Two individuals, besides the corporation, were named as defendants.
The contention of the plaintiffs is that they have the right to cut and remove the timber on the tract of land at the stipulated price of $12.50 per thousand feet, regardless of the total quantity, until the expiration of the contract on December 31, 1946. The contention of the defendants is that the plaintiffs have the right to *672 cut only $35,000 worth of lumber, at the stipulated price per thousand feet, and that when this amount of timber is cut, the lease expires, and that more than this amount of timber had already been cut at the time the present suit was brought. This contention was embodied in the answer, which also contained a cross-prayer for injunction against the plaintiffs, to restrain them from cutting and removing any additional timber.
Upon the hearing, W. F. McCann testified: "I knew there was a lot of good timber on the land, but did not know how much. I had been over a portion of it but not all. We were not buying it in bulk and therefore did not have it cruised. Neither of us knew how much timber of the dimensions we agreed on we would be able to cut, but Mr. Paulk said that for reasons personal to himself which he stated, that he wanted the lease to recite a consideration of $35,000. I told him that would be all right with me if it would be all right to put it in the lease. There was never any suggestion by Mr. Paulk that he would sell nor any by me that we would buy $35,000 worth of timber. There was never at any time any suggestion that I ever heard of or knew about that we were buying anything except the right to cut all of the timber that we could of the dimensions stated within the period of our lease." He further testified that he asked an attorney whether it would be all right for the lease to recite a consideration of $35,000. explaining why this amount was to be recited, and the attorney advised that it did not make any difference what amount of consideration was recited, whether thirty-five thousand or only one dollar. Some additional testimony was introduced by the plaintiffs.
Glynn Lumber Company introduced witnesses, who testified that the timber was being wastefully cut and handled by McCann Lumber Company; that the understanding of the parties to the lease at the time of its execution was that it would expire when $35,000 worth of timber was cut, and this amount of timber had been cut before the institution of this suit. J. B. D. Paulk, the original lessor, testified by affidavit in part as follows:
"After said contract of July 28, 1941 was entered into and McCann had his equipment and crews cutting and removing said timber as outlined in said contract, unusual rains occurred, and it was impossible for McCann to operate profitably all the time *673 in cutting and removing said timber as outlined in said contract, as all of said timber was in the Buffalo Swamp. It was then that McCann came to deponent and stated these facts and wished to cut timber on the outside of the Buffalo Swamp. Deponent needed $35,000 at that time, to be paid as stated in the contract of March 1, 1943, as he was not getting his money out of the contract of July 28, 1941, and he agreed with McCann to sell him $35,000 worth of timber, and also to give McCann an opportunity to keep his crews and equipment working from time to time when they could not work in the Buffalo Swamp. The contract of March 1, 1943, was entered into for the sale of $35,000 worth of timber. Deponent never heard that McCann ever considered that he had purchased more than $35,000 worth of timber until after he had sold the property upon which the timber was located to the Glynn Lumber Company."
Additional evidence along the same line was introduced.
The plaintiffs objected to various parts of several of the affidavits for the defendants, "on the ground that same varied the terms of the written contract." The judge held that the contract was ambiguous, admitted the evidence over the objection stated, and passed an order enjoining both the plaintiffs and the defendants and their respective agents from cutting any other or further timber from any of the lands covered by the contract, until further order of the court. The plaintiffs excepted. The defendants in error, defendants below, contend that the lease contract is ambiguous as to the quantity of timber that could be cut and removed under the right granted, basing this contention mainly upon the general recital of $35,000 as consideration, and insisting further, that, as explained by the testimony which they introduced, the agreement conveyed the right to cut only $35,000 worth of timber at the stated price of $12.50 per one thousand feet. From the pleadings and the evidence, and the briefs of counsel, the validity of these contentions appears to be the controlling question.
1. "The construction of a contract is a question of law for the court. Where any matter of fact is involved (as the proper *674
reading of an obscurely written word), the jury should find the facts." Code, § 20-701. "The cardinal rule of construction is to ascertain the intention of the parties. If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction." § 20-702. "Parol evidence is inadmissible to add to, take from, or vary a written contract. All the attendant and surrounding circumstances may be proved, and if there is an ambiguity, latent or patent, it may be explained." § 20-704 (1). "The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part." § 20-704 (4). "Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument." § 38-501. "Parol evidence shall be admissible to explain all ambiguities both latent and patent." § 38-502. The intention of the parties is determined from a consideration of the entire contract; and, if possible, all of its provisions should be so interpreted as to harmonize with each other. Simpson v.Brown,
While, as we have stated, the agreement must be finally considered in its entirety, let us first examine it without reference to the general recital as to consideration, after which we will consider it as a whole and in the light of such recital. Stripped of such recital, the lease contract would not contain the slightest hint that there was any intention to sell only $35,000 worth of timber at the stipulated price of $12.50 per thousand feet, as contended by the defendants, rather than all of the timber, regardless of quantity, at the stated price per thousand feet, subject only to *675 the expiration of the lease on December 31, 1946, as contended by the plaintiffs. In this statement, we are looking, of course, at paragraph 2 of the contract, which, aside from the immediately preceding statement "that this lease applies only to timber on the west side of Buffalo Swamp," contains literally the first indication as to what, if anything, is being sold, or even as to the nature and purpose of the agreement. It contains the first and only granting clause, and the first and only complete description of the timber. Nor is there any later qualification of such description — unless we are to assume that some of the later provisions are inseparably linked with such general recital of consideration. In that paragraph, the vendor granted a license to cut and remove "the timber (either standing or on the ground) hereinafter described on said described lands," and then, in subparagraphs (a), (b), and (c), he fully described the timber as to kinds and dimensions. Necessarily, the timber meant all of the timber as thus described (41 Words Phrases, Perm. ed. 461); and note also the clause in subparagraph (c), "The vendee to utilize all merchantable timber herein described." Whether this clause refers only to the pine timber, described in this subparagraph, it is apparently inconsistent with the claimed limitation. The price is stated in paragraph 3 as $12.50 per one thousand feet.
We next consider paragraph 7. Excepting the guarantee as to the repair of roads and bridges, this paragraph refers only to the terms of payment of the previously stated price of so much per thousand, stating that deposits or partial payments shall be made from time to time in advance of cutting, "until there remains only approximately $5000 worth of timber left to be cut under the within lease as hereinabove provided for," the deposit for this last $5000 worth of timber having been made at the execution of the contract, being a part of the initial payment of $8000. By these provisions, the vendor was to be paid for all timber before it was cut, not as an entirety, but in quantities of $5000 worth at the stipulated price of $12.50 per one thousand feet.
From what has been said, we think it is perfectly clear that the plaintiff's were not limited to the cutting and removal of any particular quantity of timber, unless it should be otherwise because of the recital of $35,000 as consideration. We will now consider the contract as a whole — that is, with this clause included. *676
In the light of the other provisions and the applicable rules of construction, it is apparent that the consideration as recited was no the consideration for the timber itself, but was the consideration or part of the consideration, mutual covenants also being mentioned, for the act of the vendor in agreeing to the subsequent provisions of the contract, whereby he granted to the other parties, called the vendees, a license to cut and remove the timber as described at so much per one thousand feet, subject to termination of the lease at the time therein stated. The consideration for the timber itself would be the $12.50 per one thousand feet agreed upon in paragraph 3, as to which the obligation and terms of payment would be governed by paragraphs 2 and 7. We are not here concerned with any question as to whether the vendees were actually obligated to cut and remove, that is to say, to purchase, any part of the timber described. Whether the agreement did grant a "license" only, or whether it went further and imposed an actual obligation to purchase, the parties could lawfully enter into an agreement of either character, and the grantor could at the same time exact a consideration for entering into it, entirely apart from the consideration for the timber itself, as cut and removed in accordance with the contract.Weed v. Lindsay,
While it may be true that in contracts regarding the sale or possible sale of property, we generally think of consideration as the amount paid or to be paid for the property itself, consideration may not always have that meaning, and under the terms of the present contract, as properly construed, we are satisfied that it was not so intended in this instance. In applying this interpretation, we accord a place to each and every part of the agreement and give full weight to each according to the apparent intention of the parties, judged by the language used, and considering the agreement as a whole.
Certain matters have already been mentioned as not being within the scope of the present inquiry. The liability of the plaintiffs, if any, under the general recital to which reference has been made, *677 and whether on such an issue parol evidence would be admissible for the purpose of inquiring into the consideration, are additional questions which are not before us at this time. Accordingly, nothing contained in this opinion is intended as an expression or intimation thereon.
In view of what has been said, the contract was not ambiguous in the sense that parol evidence would be admissible for the purpose of explaining its meaning with reference to the quantity of timber that could be cut and removed under the right granted; nor was there any limitation as to quantity. Therefore the court erred in admitting the parol evidence to which objection was made, and in not granting an injunction as prayed by the plaintiffs; nor should the plaintiffs have been enjoined on the cross-prayer of the defendants.
2. While we might rest our conclusion upon what has been stated in the preceding division, we may say that we have not in that division construed the contract precisely as it has been presented to us by either side, and this being true, some additional observations will be made.
Even assuming that the recital mentioned might be taken as referring to the consideration for the timber itself, as insisted by the defendants, rather than for the act of the vendor in entering into the contract, as stated in the preceding division — and certainly this would be the only other interpretation that could be urged with any degree of plausibility — still, such general recital could not, in our opinion, be properly treated as limiting or qualifying the plain and specific terms of paragraph 2, whereby the plaintiffs were granted a license to cut and remove all the timber, regardless of quantity, at the stipulated price of $12.50 per one thousand feet, subject only to the expiration of the lease on December 31, 1946. On the contrary, the particular and explicit language would restrain and limit such general recital. "The general rule of construction applicable to all writings, constitutions, statutes, contracts, and charters, and even to ordinary conversations, is this: that general and unlimited terms are restrained and limited by particular recitals, when used in connection with them."Torrance v. McDougald,
Furthermore, we do not have here a mere comparison of general language in a contract with that which is specific. What we do have is a mere recital of consideration, which is one of the weakest elements to be found in any written contract, to be weighed against the granting and descriptive clauses, which, to say the least, are of vital importance in any instrument. InHarris v. Hull,
As illustrating the inherent weakness of the recital in question, we need only recall a few elementary principles. The consideration of a deed or other contract may always be inquired into when the principles of justice require it. Code, § 29-101. Where the consideration is expressed merely by way of recital, it is permissible to show by parol evidence that the real consideration is in fact different from that expressed in the instrument. Cottle v. Tomlinson,
We do not overlook the decision in Novelty Hat Mfg. Co. v.Wiseberg,
The phrase, "as hereinabove first provided for," in paragraph 2, *680 can not reasonably be construed as referring to anything preceding that paragraph; for, as we have seen, that was the first paragraph which contained anything in the nature of a lease, and it was only in that paragraph that any specific description of timber was given. The recital of $35,000, though appearing before it in the contract, did not within itself indicate anything whatever as to the nature and purpose of the agreement. So, even if the recital might be taken as referring in some way to the consideration for the timber itself, as assumed in this division, we reach the same result as in the preceding division.
Judgment reversed. Bell, C. J., Duckworth, Atkinson, andWyatt, JJ., concur.
ATKINSON, J., concurs specially for the reasons stated in the first division of the opinion. [EDITORS' NOTE: THIS PAGE IS BLANK.] *685
Dissenting Opinion
The contract appears to me ambiguous; not only ambiguous in the dictionary sense, but ambiguous in a way that the recognized rules of law are helpless to clarify and resolve. If its meaning could, in fact, be arrived at by the mere application of legal principles, such as are set forth in the majority opinion, there would be no difficulty in agreeing with my colleagues that it is not ambiguous in the sense contemplated by the Code, § 38-502, which permits the introduction of aliunde proof to arrive at the meaning intended by the parties to an ambiguous contract. Surely it ought not to be said that the stated consideration of $35,000 can be arbitrarily or capriciously brushed aside. As I understand the majority opinion, such is not the intent of its ruling. The majority opinion treats the stipulated $35,000 consideration in the light of two different interpretations. The first division of the opinion holds that the contract necessarily means that the $35,000 consideration was stated merely by way of recital setting forth the inducement by which and under which the vendor agreed to sell the entire described timber at $12.50 per thousand feet. The second division of the opinion treats the stated $35,000 on the assumption that it set forth the amount of the purchase-price of the timber conveyed. Under the latter assumption, it is not contended that such a stated purchase-price consideration, when taken together with the other provision that the timber must be accounted for at $12.50 per thousand feet, would not fix and determine the quantum of the *681
timber conveyed. In dealing with the meaning of the contract on this latter assumption, the second division of the majority opinion weighs the statement of the $35,000 purchase-price consideration in the balance and finds it wanting, as compared in force with other provisions of the contract setting up the quantum of the property sold. In doing this, it makes application of stated legal principles, and in effect altogether discards the stipulation as to the purchase-price consideration in favor of other provisions I could well agree with the treatment embodied in the first division of the majority opinion, if the one and only reasonable interpretation of the agreement was that the vendor in consideration of the sum of $35,000 had agreed to sell all the timber on certain described land at a certain designated price per thousand feet. Under any such enforced construction, it would not be necessary to apply the principle that the stated consideration of a contract can ordinarily be inquired into, since under such an interpretation the subject-matter and quantum of the property sold would be unequivocally described and measured independently of any statement of the consideration which induced the vendor to enter upon an otherwise completeagreement. But, as I see it, this is not the only reasonable interpretation which the language of the contract permits, nor do I understand that the vendee so contends, but on the contrary he, by his evidence embodied in the record, in point of fact repudiates the idea that it was intended that he was to pay the sum merely for the privilege of obtaining a contract for the purchase of the timber at $12.50 per thousand. The $35,000 stipulation, which can not be simply ignored, may just as readily be taken to mean that it represents, not the consideration for entering upon the contract, but the purchase-price of the timber conveyed, and that it therefore measures the quantum of timber sold from the described tract at the stated price of $12.50 per thousand feet. Under either view, the timber involved would have to be definitely described. Under such latter interpretation, the statement of the $35,000 consideration, or purchase-price, does not have to be ignored or repudiated, but can be given full effect. Under such an interpretation, the statement of the purchase-price consideration can not be brushed aside by legal construction in determining the quantum of the timber sold. This for the very simple reason that, under such a construction, the consideration is what measures *682
the quantum of the property conveyed. While it is true that ordinarily the consideration of a contract can be inquired into, it has always been recognized that such can not be done, nor can the consideration be questioned or impeached, when it is stated, not as a mere recital, but as a part of the terms and conditionsof the agreement itself. Byrd v. Marietta Fertilizer Co.,
