Simmons v. . Groom
83 S.E. 471
N.C.
1914
Check Treatment
HoKe, J.

There is evidence in the record tending to support the findings of fact by the referee, and this being true, and these findings having been concurred in by the judge, they are not open to further review by this Court, and being adequate and fully responsive, must be considerеd as representing the facts on which the rights of these parties must be determined. McCullers v. Chambers, 163 N. C., 61; Henderson v. McLain, 146 N. C., 329.

As to the conclusions of law embodied in the report of the referee, it is contended by the defendant, and his exceptions are framed and designed chiefly to present the position, that in the contract declared on the defendant is only required to pay for logs cut as hе cuts them, and that he is allowed the entire time contained ‍​​‌​​‌​​‌‌‌‌​​​‌​‌​‌​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​​‌​​‌‌‌‌​‌‍in the timber contracts bought by him in which to cut the amount necessary to meet the sum stipulated for in the contract, and that not having cut this amount when the suit was commenced, the action was begun prematurely, and that on the facts as found defendant now owes plaintiff nothing, and the action should be dismissed.

In R. R. v. R. R., 147 N. C., 382, in speаking to certain rules of interpretation applicable to these written contracts which are sufficiently ambiguous tо permit of construction, the Court said: “It is well recognized that the object of all rules of interpretation is to arrive аt the intention of the parties as expressed in the contract, and that in written contracts which permit of constructiоn this intent is to be gathered from a perusal of the entire instrument. In Faige on Contracts, sec. 1112, we find it stated: ‘Since the object of construction is to ascertain the intent of the parties, the contract must be considered as an entirety. The problem is not what the separate parts mean, but what the contract means when considered as a whole.’ And while in arriving at this intent words are prima facie to be given their ordinary meaning, this rule does not obtain when the ‘context or admissible evidence shows thаt another meaning was intended.’ Paige, sec. 1105. And further, in section 1106, it is said that the ‍​​‌​​‌​​‌‌‌‌​​​‌​‌​‌​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​​‌​​‌‌‌‌​‌‍context and subject-matter may affect the meaning of the words of a contract, especially if in connection with the subject-matter the ordinary meaning of the tеrm would give an absurd result, Again, as said by Woods, J., in Merriam v. United States, 107 U. S., 441, ‘In such contracts it is a fundamental rule of construction that the courts may look to not only the language employed, *276 but to the subject-matter and. surrounding circumstances, and may avail themselves of the same light whiсh the parties possessed when the contract was made.’ And in Beach on Modern Law Contracts, sec. 702, the author says: ‘To ascertain the intention, regard must be ‍​​‌​​‌​​‌‌‌‌​​​‌​‌​‌​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​​‌​​‌‌‌‌​‌‍had to the nature of the instrument itself, the condition of the parties executing it, аnd the objects they had in view. The words employed, if capable of more than one meaning, are to be given that mеaning which it is apparent the parties intended them to have/ ”

Applying the principles contained in these citatiоns, it appears from the findings of fact in the referee’s report that this was a sale of property by plaintiff to defеndant at the contract price of $19,500, entered into in 1908, and that there remains due the sum of $10,785.35, which is to be in any event ultimately рaid by defendant, save and except a small counterclaim of $336.05, being the amount paid to relieve some of thе property from a judgment lien; that the written contract, after stipulating for the payment of this sum of $10,785.35, provided that the defеndant might pay for same by removing timber from the land at the rate of $3 per thousand, rendering an account from the 1st to the 10th of each month, and “it being understood that I am to cut the timber as a whole within the time mentioned in the timber deeds, and as much soоner as I reasonably can”; that notwithstanding this stipulation for reasonable diligence, and the fact that there was amрle timber on the ground and that sufficient time had elapsed to enable the defendant to have cut the timber and paid off the entire debt, the methods of defendant have been so lax and dilatory that, in the three years and over from the signing of the contract to the institution of the suit the defendant has.only cut 2,982,076 feet of the 4,500,000 he himself was to have before commenсing payment; that the mill having burned, he has made no effort to procure another, and- has transferred his holdings to a corрoration organized by him, known as the Duck Lumber Company; that he has permitted at least three of the timber contracts tо become forfeited by lapse of time and has made no payment on the amount except the small counterclaim of $336.05, paid in satisfying a judgment lien, as'stated.

From these, the facts and attendant circumstances, having due régard to the nature and history of the transaction and the design and controlling purpose of the agreement as well as its language, we concur in the view of the referee, that this contract did not contemplate that the defendant should in any event hаve ‍​​‌​​‌​​‌‌‌‌​​​‌​‌​‌​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​​‌​​‌‌‌‌​‌‍the entire time stipulated for in these timber deeds to cut and pay off this obligation, but that he was to proceed and cut the timber with reasonable diligence; that the ultimate obligation to pay being absolute, this was a method of payment provided by the contract for defendant’s benefit, and, it appearing that *277 be bas utterly failed to comply witb tbe stipulаtion, its terms may no longer avail bim, and, by correct interpretation of tbe contract, bis obligation to pay bas beсome absolute.

We were referred by counsel to tbe case of Hardison v. Lumber Co., 136 N. C., 173, for tbe proposition tbat one baving a contract conferring tbe right to cut timber on another’s lаnd for a stated period is not required to cut continuously, and tbe case so bolds; but this was construing an ordinary timber contraсt as ‍​​‌​​‌​​‌‌‌‌​​​‌​‌​‌​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​​‌​​‌‌‌‌​‌‍between tbe parties thereto, and does not apply where, as here, one bolding such a deed bas conveyed tbe same under a contract binding tbe grantee to proceed witb diligence and bas absolutely, failed to сomply witb tbe stipulation.

On careful perusal of tbe record, we find no error wbicb gives defendant any just ground of complaint, and tbe judgment in plaintiff’s favor is

Affirmed.