Alexander v. Beekman Lumber Co.

Wood, J. The bill of exceptions shows that the court of its own motion gave the following instructions and declarations of law, towit: “ T. The words of description of the property sold in the contract included the mill shed. “ ‘2. If the shed was a fixture real when built, it has by agreement of the parties ceased to be such. “ ‘3. The form of the writing is sufficient. “ ‘4. The plaintiff was the owner of the shed when it was torn down.’ “To which instructions and declarations of law the defendant at the time excepted, and asked that his exceptions be noted of record, which was accordingly done.” The exception to the instructions was in gross. Atkins v. Swoope, 38 Ark. 528. But, inasmuch as the contract itself was the basis of the complaint, and as the question of law in the case depends upon the sufficiency of the complaint, we are of the opinion that if there was any error in the construction of the contract, such error appears upon the face of the record. So the only question here is, do Alexander, Amberg & Company (represented here by appellant) own the sawmill shed involved in this litigation? Reverting to the contract, its language is: “The party of the first part hereby sells to the party of the second part their sawmill and ail the machinery connected therewith located on said land near St. Francis River and the Paragould & Southwestern Railroad. * * * Nothing is sold to the party of the second part but tiriiber, sawmill and machinery mentioned herein, and the party of the first part retains the ownership of the land and all other property thereon. It is expressly agreed and understood that if the party of the second part does, not pay the notes given for said sawmill and timber promptly when they fall due, then all of said notes are to become due and payable at once, and the said sawmill and timber may be sold to pay whatever may be unpaid of the purchase price by the party of the first part. In testimony whereof we have signed our names hereto this the 13th day of July, 1895. It is further agreed by the party of the first part to give the party of the second part the use of all the houses on said property, except one occupied by S. Virgilio.” We do not agree with the learned trial court that the word “sawmill,-” as used in the contract, includes the mill shed that covers the sawmill. A mill is not a shed, and a shed is not a mill. They are not synonymous nor convertible terms, nor does one include the other. A sawmill is a sawmill, whether it has a shed over it or not. In, the factory where it is made or the store where it is sold, it is still a sawmill, and the sheds covering the sawmill in such cases are not parts of the sawmill, but parts of the real estate to which they are attached. AVhat is a sawmill? A “saw” is “a tool for cutting,” and a “mill” is “a machine for grinding.” March’s Dictionary. The standard lexicographers all give the first meaning of mill as a machine or device for grinding, cutting, etc. The mill is the machine constructed for various purposes of grinding, cutting, etc. The particular purpose for which it is designed is usually designated by a prefix indicating the purpose, as “sawmill,” “gristmill,” etc. The term “mill” necessarily carries with it the idea of a machine, device, tool, but it does not necessarily carry with it the idea of a shed or house. True, the term “mill” is frequently used to designate, not only the machine used for grinding, cutting, etc., but also, in a general and comprehensive sense, the house or shed where such machinery may be in operation, if there be a house or shed where the mill is located. Many lexicographers give- this as the second meaning of the word. See Worcester, Century and Webster’s Dictionaries. So not much aid can be derived from the definition of the word by the lexicographers, except when it is used in its strictly technical sense. If the makers of the contract had used the word in the broad sense of designating the plant as a whole, including house, machinery and all appointments in connection with such manufacturing establishment, they would hardly have added the words, “and machinery,” “and machinery .thereto attached,” after the word “sawmill,” for it would have been unnecessary. The word “mill” would have been sufficient. Now, the parties to the contract were by their contract converting fixtures into personalty, if the contention of appellee be correct. They were changing the legal and natural status of the property, and the intention to do this should be made most manifest before the instrument could be construed to have such effect. We think it clear from the words used, and from the other reservations made by the owners of the real estate, that they did not intend to sell the mill shed with the sawmill and machinery, This shed would have to be torn down and detached from the soil in order to be removed, and it is not probable, we think, that the parties had this in contemplation. Only the “sawmill and machinery” were sold. “The land and all other property thereon” were reserved. It follows that the mill shed or house was not sold, and the court erred in rendering judgment in favor of appellee. The judgment is reversed, and the cause is remanded for new trial.