Banks v. Lumber Company.

ClaRK, O. J., after stating the case: The construction of a written contract, when its terms are unambiguous, is a matter for the Court. This contract specifies clearly the diameter and the point of the tree at which the diameter should be measured. In some of the cases which have come before this Oourt, the contract has stipulated “not less than fourteen inches in diameter twenty-four inches above the ground,” as in Lumber Co. v. Hines, 126 N. C., 255; or “twelve inches in diameter on the stump,” Hardison v. Lumber Co., 136 N. C., 173, and Warren v. Short, 119 N. C., 39; or timber that will “square one foot,” Whitted v. Smith, 47 N. C., 36; and it may be that there have been others with a stipulation, like this, for the measurement to be taken “at the base.” This is a matter of contract between the parties. Ilis Honor was correct in holding that “at the base” meant “at the ground.” AVebster defines “Base — that on which something is supported, as the base of a column, the base of a mountain,” i. e., at the foot of the column, at the foot of the mountain. The contract specifies timber “now standing or growing,” i. e., trees; and the base of a tree is “at the foot” of the tree. If the' parties intended that the measurement should be taken “at the stump” or “twenty-four inches above the *51 ground,” they have not so contracted. The contract being for measurement at the base, it cannot be contradicted by parol. Certainly, evidence merely that it was customary in that section to cut timber two feet above the ground could not have that effect, for it was not shown nor offered to be shown that such cutting was usually under contracts stipulating for measurement “at the base,” and that when cut under such contracts the “diameter at the base” was by general custom understood and taken to be twelve inches in diameter two feet above the ground. ITis Honor, therefore, properly held that “twelve inches in diameter at the base” meant “at the ground.” If this enabled the defendant to cut trees that might measure less than twelve inches in diameter two feet above the ground, it is because the plaintiff so contracted. In Hardison v. Lumber Co., 136 N. C., 173, we held that the natural meaning of the words “twelve inches in diameter” applied to standing trees and would be “from outside to outside, bark included,” in the absence of a general custom giving the words a different meaning. So, here, the natural meaning of “twelve inches in diameter at the base” is “at the ground,” and there was no evidence offered of a general custom that when those, words were used in a contract, “at the base” meant “two feet above the ground.” The words “when cut” only extends the time of the measurement, which would otherwise refer to the diameter of the trees at the date of the contract, to the time of the actual cutting. Hardison v. Lumber Co., supra, and cases there cited. If the meaning of the contract was “12 in. diameter at the base of the log” when cut, then all the timber above the lowest cut would belong to the land-owner if the upper cuts were less than 12 in. diameter at the big end. No Error. HoKE, L, dissenting.