McKenzie & Morton v. Wimberly , 86 Ala. 195 ( 1888 )

STONE, C. J.

The written contract evidences a sale by-Nicholson to McKenzie & Morton, of certain timbers standing on 120 acres of land, described in the writing. The sale was an implied authority to enter and remove the timber within a reasonable time. The contract describes the timber sold as “all the pine timber 12 inches heart and up.” There was contention in the court below as to the meaning of the phrase “12 inches heart and up”; and testimony was properly admitted as to its meaning. — 3 Brick. Dig. 291, §2; Wilkinson v. Williamson, 76 Ala. 163. This controversy raised the question of the proper rule for the measurement of the timber.

The suit was on the note given in part purchase of the timber, and the defense was failure of consideration to a greater extent than the amount of the note. If the contention of McKenzie & Morton was correct, then they were forbidden and prevented from further removing the timber, when there remained upon the tract timber they had purchased of greater value than the amount of the note. If the contention of Nicholson and his transferree, Wimberly, was the true rule of measurement, then McKenzie & Morton had obtained all the timber they purchased, and they were not entitled to remove any more timber. The testimony tends to show that McKenzie & Morton were stopped in getting timber in July, 1883. The note sued on was due in February, and was traded to Wimberly in September — all in 1883. The note is non-negotiable.

The testimony tended to show that the land, the timber on which was contracted to be sold, was the statutory separate estate of Nicholson’s wife. She did not join 'in the sale.

The testimony is agreed as to the fact, that Nicholson forbade McKenzie & Morton cutting and removing other timber, but the witnesses differ as to 'the reason he gave. Nicholson’s version was, that they had obtained all the timber they were entitled to under their purchase, and on that account he stopped them. Their testimony tended to show that he informed them the land belonged to his 'wife, and that she would sue them if they trespassed further upon it. Thereupon they ceased, and never afterwards cut any timber from the land.

As we have shown, the real question in issue was the proper rule of measurement; and upon that question the testimony was in conflict. It thus became a question for the jury. Charge three asked by defendants ought to have been given.

Charges 1 and 2 were properly refused. If McKenzie & Morton had obtained all the timber they were entitled to under the contract, they were in no condition to defend against the note. — McCausland v. Drake, 3 Stew. 344; 1 Brick. Dig. 383, §§ 119, 120.

Reversed and remanded.