Morningstar v. Wiggins , 59 Ala. 267 ( 1877 )

MANNING, J.—

According to the instrument executed November 27th, 1873, out of which this contest arose, in the first place, Kelly, one of the parties to it, “ sells and agrees to deliver to the said Wiggins and McMillan, or their authorized agent, at Ferry Pass, in Escambia county, State of Florida, during the ensuing season, the following pitch-pine timber, to say (100) one hundred pieces at the following scale of prices;” &c., the parties further agreeing, that “in case any timber is delivered classing under B one, it is not to be included in the scale of prices, but Wiggins & McMillan-are to have the option.of taking it at the market price, and Wiggins & McMillan agreed to advance to Kelly, “ from time to time such reasonable sums as may be needed to manufacture and haul said timber and raft it to the market,” he to pay the usual interest and commissions. In the second place, Kelly “ gives a lien and mortgage as security for such advances upon all timber as fast as gotten out wherever it may be,” and authorizes Wiggins & McMillan, “whenever they may think it-necessary for their security, to take possession of and brand said timber, wherever it may be, and get it to market, leaving the final settlement of accounts with Wiggins & McMillan or their representatives, until the timber reaches market;” and Kelly further agrees “not to contract with any other party, for the sale or delivery of timber until the fulfilment of this contract and acknowledges the receipt ■of $50, fifty dollars, as an advance” thereon.

In construing this instrument so as to give due effect to every part, and properly to enforce it as a whole, we regard this last stipulation, which prohibits the sale or delivery of timber by Kelly to any one else, unless this contract is fulfilled, as supplemental to the preceding clause, which creates a lien and mortgage, and as designed to prevent this security from being in any way impaired. Thus viewed the subsequent clause removes all the uncertainty which may be supposed to be produced in the former, by the expression “ as fast as gotten out,”—and shows that the mortgage extended to any timber which Kelly should have from the time of the execution of the instrument until the fulfilment of his contract, and therefore embraced the timber sued for, which he had transferred to appellant. The Circuit Judge might have so instructed the jury in his charge to them, without reference to the parol evidence on the subject. Therefore, in the instruction excepted to, he committed no error to the prejudice of appellant.

Let the judgment be affirmed.