Purdom Naval Stores Co. v. Knight

129 Ga. 590 | Ga. | 1907

Atkinson, J.

1. From the statement of facts it will be-readily seen that the controlling question is upon the .construction of the contract. If it affirmatively appears from the petition that defendant did not overreach the terms of the contract, the plaintiff would have no right to the injunction, and a general demurrer should receive favorable consideration. In fixing the date at which the term should begin, the parties stipulated tor-no definite day, but provided that the time should begin “at the time each lot is boxed,” and provided that the timber “is to be boxed during the season of 1905 or 1906.” The word “season”' 'is not limited to one day, but contemplates a longer time. Cases are cited in 7 Words & Phrases, 6376, which construe the meaning of the word “season.” In the present case the parties stipulated that the boxing should be accomplished either during the season of 1905 or during the season of 1§06. The defendant was at liberty to box upon any date during either season. There are instances, as will be observed from examination of the cases referred to in Words & Phrases, supra, where the word “season” is not defined by law. In all such instances it is proper to consider evidence to ascertain the limit of time expressed in a given season.. But the case now under review contemplates the season for the-boxing of trees for turpentine purposes, and the period within which that can be done is fixed by statute. Being fixed by statute,, the court knows as a matter of law the particular time contemplated by the use of the word “season” as employed in this case, and may deal with it on demurrer. Penal Code, §496, provides:. “Any person who shall cut turpentine boxes at any other season of the year than from the fifteenth of November to the fifteenth of March, on his oym land or the land of another, shall be guilty of a misdemeanor. The fine shall be paid over to the county treasurer.” It is thus made a penalty by statute to box trees for turpentine purposes at any other time than between the dates of the 15th of November of one year and the 15th of March of the succeeding year. By making it unlawful to box at any other time, the statute necessarily fixes the limit of the boxing; season. Therefore, when reference is made to the boxing season, as in the present case, the parties can be understood to refer to. no other time than that wherein they are permitted by law to box. The word “season,” as used in the contract, has a definite meaning, so made by statute. The contract must be construed in the light of the statute, and it will be conclusively presumed that by the use of the word “season” the parties contemplated the period of time fixed by statute during which it is lawful to box. Under this'view a season will begin in one calendar year and end in the succeeding year. But the time is continuous. There is no break. When reference is made to the season of 1905, the entire season is contemplated. So when it was provided that the defendant should box during the season of 1905, it was entitled to box for a whole season. The right could not be restricted to the period intervening between November 15, 1905, and the end of the year, because that would deprive the defendant of the remaining 2 1-2 months of the season in'which the boxing was authorized by law to be done. That would altogether defeat the intention of the parties, who had contracted for a full season. The same may be said with respect to the season of 1906. We may therefore safely conclude that, in view of the statute, the parties, while contracting, contemplated that the season of 1905 would commence on the 15th day of November of that year and end on the 15th day of March, 1906, and that the season of 1906 would commence on the 15th day of November of that year and end on the 15th day of March, 1907. The use of the disjunctive “or” emphasized the fact that the parties contemplated the two seasons separately. ' Having provided that the boxing should be done during either season, the defendant had all or any part of either season in which to box. After boxing the trees, it had the right for the full term -of four years thereafter to otherwise work for turpentine purposes the trees which were actually boxed during that season, but not any other trees. The intention is clear, from the mandatory language, “The said timber is to be boxed during the season' of 1905 or 1906,” that no boxing was to be done thereafter. The plaintiff’s petition sets forth the contract in full, and affirmatively shows all that has been stated, and moreover affirmatively shows that the defendant entered the premises for the purpose of boxing the trees at a date prior to the 15th day of March, 1907, during the boxing season of 1906 and at a time • when such entry was authorized under the lease. It therefore affirmatively appears from the plaintiffs declaration that the defendant was clearly within its rights when it undertook to box the trees, for the prevention of which boxing the injunction was sought. The petition, setting forth all of this, alleged no cause of action against the defendant; and the defendant’s general demurrer should have been sustained, and the court should have refused to enjoin the defendant from boxing the trees.

2, 3. The hearing was had after the return term of court had arrived. The demurrer was therefore ripe for determination. The presiding judge heard it; and no point was made'as to the time and place when it was heard and determined; but exception was taken to the merits of the ruling. The application for injunction was also heard and decided. A bill of exceptions was filed, which complained of both rulings, and assigned error on each. The bill of exceptions was certified and filed in the office of the clerk of the superior court more than thirty days before the beginning of the next term of the Supreme Court. It stated that it was tendered in twenty days from the decisions complained of; but the time of certification, service, and filing was such that it might have been treated either as a “fast” writ under the Civil Code, §5540, relating to the grant of injunction, or an ordinary writ under the Civil Code, §5539, relating to the ruling on the demurrer. It was here in due season to be heard at the present term of this court either way. Whether it should be heard speedily or wait for the arrival of the circuit to which it belonged was rather a technical matter of docketing than a matter of substance. Under these facts we have allowed the case to be heard with “fast writ” cases; but there is no reason why the entire merits should not be determined. Indeed the two exceptions involved are controlled by one point of law. To decide one determines the other. This presents a stronger ease for deciding the law controlling the demurrer than that of Jordan v. Kelly, 63 Ga. 437.

We hold that the grant of the injunction was erroneous, and so likewise was the order overruling the demurrer.

Judgment reversed.

All the Justices concur.