Hendricks v. Mocksville Furniture Co.

*572 AlleN, J"., after stating tlie case: Tbe determination of the controversy between the plaintiffs and the defendant depends upon the interpretation of their contract. If it is executory, and under its provisions the title to the timber was not in the defendant, there could be no liability, because it is admitted that the timber had not been stacked six months, and there was no delivery at Mocksville — material stipulations, which the plaintiffs agreed to perform. This is upon the familiar principle that one who seeks to recover upon a contract with interdependent conditions must show performance on his part. Lowing v. Rintles, 97 N. C., 350. As was said in Hornthal v. Howcott, 154 N. C., 229: “The object of courts in the construction of a paper-writing is to discover what the parties to it intended, and whether apt language has been used to give effect to that intention,” and, “The intent as embraced in the entire instrument is the end to be attained, and each and every part of the contract must be given effect, if this can be done by any fair and reasonable interpretation.” Davis v. Frazier, 150 N. C., 451. In this last case Justice Holce quotes with approval Lawson on Contracts, secs. 388 and 389, as follows: “The third main rule is that that construction will be given which will best effectuate the intention of the parties, to be collected from the whole of the agreement; and, to ascertain the intention, regard must be had to the nature of the instrument, the condition of the parties executing it, and the objects which they had in view. . . . Courts will examine the whole of the contract, and so construe each part with the others that all of them may, if possible, have some effect, for it is to be presumed that each part was inserted for a purpose and has its office to perform. So, where two clauses are inconsistent they should be construed so as to give effect to the intention of the parties as gathered from the whole instrument. So every word will, if possible, be made to operate, if by law it may, according to the intention of the parties.” If we apply this rule of construction, and look at the entire instrument, what did the parties intend? *573 Tbe plaintiff argues with much force tbat there is nothing ambiguous in the language used, and that it says in express terms that the timber is conveyed to the defendant. This conclusion is reached, however, by looking at only a part of the contract, and that part, standing alone, has no consideration to support it. If the parties intended the title to the timber to pass upon the execution of the contract, it would be reasonable to expect the conveyance of the timber to be upon consideration of so many dollars, or for a certain amount per thousand feet. It nowhere appears that the defendant agreed to buy or pay for timber. It wanted lumber, and agreed to pay for it when delivered at Mocksville. The amount paid in advance is not spoken of as a payment, but an advancement. Another circumstance which tends to show that it was not the intention of the parties that the paper-writing should operate to pass the title to the timber at the time it was signed is that a part of the land on which the. timber stood belonged to Mrs. Hendricks, and there is no seal to her signature, and no probate and private examination as to her. Mr. Hendricks said on his examination: “The description of the land in the contract covers about 150 acres of the lands of myself and wife.” Also, there is no provision allowing the defendant to enter and cut, upon failure of the plaintiff to do so. As it appears to us, the situation of the parties was this: The plaintiffs had timber, which they wished to sell, and the defendant needed lumber. The plaintiffs agreed to cut and saw their timber into lumber and deliver it at Mocksville for $15 per thousand feet; but as the defendant could not use green lumber, it was stipulated that the lumber should be stacked six months before delivery and that the defendant should advance $7.50 per thousand feet to aid in payment of operating expenses. This is, in our opinion, a proper interpretation of the contract, and if so, it is executory and the title to the lumber was not in the defendant at the time of the fire. *574 A contract, in many respects similar to the one now before us, was considered in Wiley v. Lumber Co., ante, 210. In that case plaintiff and another sold to the defendant “all the pine and gum timber of every description above the size of 12 inches at the base on a certain tract of land,” the written contract of conveyance and sale providing that defendant should have full time to have said timber cut and removed from said land, and extending in any event for such purpose to the full term of three years. The instrument also conveyed to defendant, the grantees, the privilege to have a right of way over the grantors’ lands and to erect thereon necessary tramroads, etc., for the purpose of carrying out the timber; and there was further provision that the grantors were to cut and deliver said timber at the log bed of defendant’s tramroad and to be paid therefor at the rate of $4 per thousand, etc.; and Justice Hoke, speaking for the Court, says: “Defendant is right in the position that when one has bought and paid for a lot of growing timber, and same has been - conveyed him with the privilege of removal within a given time, the contract as to the removal is so far unilateral that the purchaser is not obligated to cut and remove the timber. If he fails to do so within the time, his right or estate therein is forfeited and inures, as a rule, to the owner of the land. We have so held in two cases at the last term. Horn thal v. Howcott, 154 N. C., 228; Bateman v. Lumber Co., 154 N. C., 248. But the contract in question here is not of that character. Applying to it the accepted rule of construction, that 'The intent of the parties as embodied in the entire instrument is the end to be attained, and that each and every part must be given effect, if this can be done by any fair and reasonable interpretation’ (Davis v. Frazier, 150 N. C., 451), a perusal of this entire instrument will disclose that while it begins by reciting $450 as the consideration, the controlling stipulation of the contract provides that the parties plaintiff were to cut and deliver 'said timber’ at the log bed and the parties defendant were to pay for the same the sum of $4 per thousand 'feet’; and it is also expressly provided that the $450 first *575 referred to as the consideration was only an advancement on the contract price and to be accounted for as the timber was delivered.” There was error in the ruling of the court, and a new trial is ordered. New trial.