Wiley v. Broaddus & Ives Lumber Co.

Hoke, J., after stating the ease: There is no reversible error shown in the record. 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. Hornthal 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 referred to as the consideration was only an advancement on the contract price and to be accounted for as the timber was delivered. The contract in this instance was therefore bilateral in its obligations, and the verdict has established that' there was a breach of same on part of defendant giving plaintiff a right to recover. On the issue as to damages there was testimony' from plaintiff tending to show that he had bargained the pine timber at a [214] less price than it was worth by itself, because of the fact that he had sold the gum with it, and this last, which was what defendant had failed and refused to receive, was not by itself worth the contract price, and hy reason of the removal of defendants’ tramroad was of very little value. There was testimony on part of defendant on this issue in contradiction of that of plaintiff, and also tending to show that plaintiff’s damage was not near so much as he claimed; but the question was submitted to the jury under a correct charge, and we find no valid reason for disturbing their verdict. After laying down the general rule of damages and giving special illustration in aid of its application, the court further said: “That will explain what I mean when I say he is to have $4 per thousand, less the value of the timber as it stood upon the ground, whatever you may find that to be, and less whatever you find from the evidence the expense would be to deliver- — -to cut ahd deliver it to the tramroad, the place stipulated in the contract. But understand, that as the plaintiff is not the only one interested in the quantity of timber, he would be entitled to only half, because the other half is not his, and he would not be entitled to recover for that. “Something has been said about the character of the timber. I charge you that such timber as was not of any use, of no value, would not be in the contemplation of the parties to the contract, and would not be included in the description of ‘all timber.’ And'yet it would not mean such timber only as was first quality timber; it would mean such timber as could be used and sawed up and put into boards for ordinary purposes for which gum timber can be used by sawmill men.” We aré of opinion, as stated, that the cause has been fairly and correctly tried and that the judgment in plaintiff’s favor should be affirmed. No error.