136 Ga. 37 | Ga. | 1911
On September '24, 1907, P. A. Gates instituted 'an action against Shippen Brothers Lumber Company for the value of trees cut from certain land alleged to be the property of the plaintiff, and for damages to the land arising from cutting roads and destroying young timber. The amount of timber alleged to have been cut was ninety thousand feet of the value of $2.50 per thousand, and the damage for cutting roads and destroying young timber was laid at $200. The wrongful acts complained of were alleged to have been committed on or about September 28, 1905. On the trial the jury returned a verdict in favor of the plaintiff for the'sum of $200. The defendant made a motion for new trial, which was overruled, and error was assigned.
“For and in consideration of the sum of Fifteen Dollars, P. A. Gates, party of the first part, grants, bargains, sells, and conveys, and by these presents do grant, bargain, sell, and convey unto Henry Holley, party of the second part, his heirs and assigns, all the hickory trees eight inches in diameter and upwards; all the poplar trees fourteen inches in diameter and upwards; all the linn trees fourteen inches in diameter and upwards; all the ash trees fourteen inches in diameter and upwards; all the walnut trees; all the pine trees fourteen inches in diameter and upwards; all the -white oak, red oak, and chestnut oak trees fourteen inches in diameter and upwards; and all the kinds and qualities and character of trees that do not come up with the specifications and requirements of timber as described in a contract made heretofore by me with J. W. Duckett and not included in and conveyed by said contract to said J. W. Duckett, on the following lot of land, to wit: Lot No. 146 in the tenth district and second division of said county, containing 160 acres, more or less. And I hereby sell and convey to the said Henry Holley, and his assigns, the right of*40 way to build a tram-railroad over said lots, so as not to interfere with tillable land. And for and in consideration of one dollar, which is a part of the above-named consideration, the receipt of which is hereby acknowledged, said first party agrees for the remainder of the above-named consideration to be paid when the second party removed the above-named trees from said land. The said first party reserving to himself, his heirs and assigns, the use and benefit of timber for fuel and fencing, so as not to interfere with the kind of trees of the diameters above named. To have and to hold the same to him, the said second party, his heirs and 'assigns, forever in fee simple; and the said first party will warrant and defend the title against all persons whatever. The said first party hereby agrees to deliver to the said Henry Holley or his assigns, at the lumber mill at or near the town of Ellijay, logs from the above-named lands not less than ten nor more than sixteen feet long, measured according to Scribner’s log measure. Or to deliver said logs upon the cars of the Marietta & North Georgia railroad, or any other railroad that may hereafter be built, at forty cents per hundred, feet, or to deliver said logs on the tram-track of second party. The first party is to deliver said logs at such times and in such quantities as the second party may direct. The hickory logs may be short as three feet.”
The descriptive clause in this deed refers to an existing contract with J. W. Duckett. This contract was also introduced in evidence, thus suppljdng the descriptive matter which was contained in the Holley deed only by reference. The Duckett contract was also ruled out, and another ground of the motion for new trial complains of that ruling; concerning which more will be said in the second division of this opinion. In the deed to Holley, P. A. Gates Sr. conveyed all trees of certain sizes and character, excluding the trees covered by the Duckett contract, to which reference has been made. It also conveyed the right to build a tram-railroad. The consideration named for the conveyance was $15, of which $1 was acknowledged to have been paid in cash, the balance “to be paid when the second party removed the above-named trees from said land.” This contemplated by its terms that Holley might remove the trees included in the conveyance from the land. The conveying part of the deed closes with a habendum and tenendum clause as follows: “To have and to .¡hold the same to him the
“This agreement and contract entered into between P. A. Gates, party of the first part, and J. W. Duckett, of Gilmer county, party of the second part, witnesseth that for and in consideration of the sum of one dollar the said first party hereby agrees to deliver to the said J. W. Duckett and his assigns at the lumber mill at or near the town of Ellijay, in Gilmer county, the place to be designated by the second party, timber on the following lands. Feet of chestnut, hickory, poplar, linn, ash, walnut, and oak, the timber to be in logs twenty inches and upwards in diameter, not less than twelve nor more than sixteen feet long, except logs of thirty inches or more in diameter at the small end, which may be delivered as short as six, eight, or ten feet, all scaled and measured according to Scribner’s book for measuring lumber in the log, the timber to be straight and sound and clear of wind shakes and knots, and to be delivered at-cents per one hundred feet, or to deliver said timber upon the cars of the Marietta and North Georgia Railroad, or any other railroad that may be built hereafter, the cars to be furnished by the second party and, at the points selected by the second party at-cents per each one hundred feet, or*44 at the option of the first party to deliver the timber on the tram-track of the second party, and as provided by the second party, at 30 cents an hundred ft. Each of said amounts will be due when the timber is accepted upon the lumber yards above described. The first party is to deliver said timber at such times and in such quantities and qualities as the second party may direct. The hickory timber may be as short as three feet and as small as eight inches in diameter. In case the first party fails to deliver the timber as by this contract, then the second party is hereby allowed to enter upon by himself and workmen the following lots of land, to wit: No. 14-6 in the 10th district and 2d section of said county, containing 150 acres more or less of timber, and cut and remove the kinds and qualities of timber described above, and the first party agrees to take 5 cents per each one hundred feet of timber cut from said land at log measure. The second party agrees faithfully to carry out his part of the contract by paying the amount for each hundred feet of timber taken as above stated. This 28th day of March, 1890.”
From the objections urged to the admissibility of this contract, and the announcement by the court at the time it was ruled out of evidence, it seems that* the ruling was based solely on the ground of inadequacy of the description of the subject-matter. This paper was admissible in connection with the deed to Holley, referred to in the first division of this' opinion. That deed purported to convey, among other things, “all the trees on the land that do not come up to the specifications and requirements of timber as described in” the above-mentioned contract with Duckett It was, therefore, made a part of the Holley deed by reference, and its contents would be material in determining what timber, if any, had been contracted by its terms to be sold to Duckett. It would be immaterial whether the subject-matter was or was not sufficiently described. If the description was sufficiént, and the contract valid and binding as to any particular trees or class of trees, it was admissible with the Holley deed in order that it might appear what trees or class of trees were excepted from that conveyance; and if it was void for want of description; it was also admissible with the Holley deed, because in that event it would show that nothing was excepted from the Holley deed, but that it conveyed all the trees on the land of the kinds and dimensions
Judgment reversed.