Canal Lumber Co. v. Florida Naval Stores & Manufacturing Co. , 83 Fla. 501 ( 1922 )

West, J.

This appeal brings to. this- court for review one question only, namely: The propriety of the ruling of the chancellor striking, upon motion of complainant, one paragraph of the joint and several answer of defendants Canal Lumber Company and Stockton, Smith and Brown to the amended bill of complaint. Prior to this ruling the court, in passing upon a demurrer to the bill, construed, it to be a bill for the foreclosure of .a vendor’s lien upon the property described and, so construing it, overruled the demurrer. The defendants named are the only ones contesting the suit. It is recited in the record that one other defendant answered, but his answer is not contained in the record. Decrees pro confesso for failure to appear or interpose any defense were entered against the other defendants. After the taking of testimony, reported by a special examiner, the court, upon consideration of the ease,. entered final decree of foreclosure of the lien in accordance with- the- prayer of the bill. From this decree an appeal was taken to this court.

The error assigned is the ruling of the court granting the motion-of complainant to strike a part of the third paragraph of the answer of defendants Canal Lumber Company and Stockton, Smith and Brown to the amended bill of complaint. .

The contract sued upon is one made on the 15th day of July, A. D. 1918, between Florida Naval Stores and Manufacturing Company, a corporation,- and J.' A. Reñtz for tbe sale of certain timber, stnmpage rights and other property npon certain lands described in the contract.

The provision of the contract sued on which is the basis of the controversy and npon which the decision turns, is that describing the property conveyed or to be conveyed by complainant to defendant Rentz upon his compliance with the terms and conditions of the contract. By this provision the complainant, “upon the comp] i anee by the said J. A. Rentz of all the terms, stipulations, conditions and agreements herein contained,” agrees to “sell and convey to the said J. A. Rentz (1) without warranty all of the stumpage coming within the terms of the aforesaid agreement of October 1, 1909, and the supplement thereto dated December 11, 1917, now available for logging and milling purposes subject, however, to all the terms and conditions of the said contract of January 30, 1917.”

The “aforesaid agreement of October 1, 1909” referred to is an agreement under which a predecessor in title of complainant acquired his interest in the property conveyed. The supplement dated December 11, 1917, is to this contract and, while it asserts that it is not to be construed as changing the original contract, ■ it does contain slight modifications.'of it. The contract “of January 30, 1917,” referred to, subject to the terms and conditions of which the contract sought by this suit to be enforced was made, seems to be the contract of January 30, 1918, under which complainant acquired title to the property. There is no contract in the record dated January 30, 1917. The date of the contract or conveyance of the property involved by which the immediate predecessor in title of complainant acquired it is not given in the record, but it must have been subsequent to the supplemental contract of December 11, 1917, for the reason that this contract was made between the parties to the original contract or conveyance and clearly indicates that the interest of ■ complainant ’s immediate predecessor must have been acquired subsequent to that date.

The paragraph stricken from the answer, the ruling upon which is made the basis of the assignment of error, is as follows:

“And these defendants further say that for the consideration mentioned' the complainant in and by its'said agreement covenanted and agreed that the stumpage upon all of the lands included in said agreement, lying west of the East Coast Canal should be available for logging and milling purposes by October 1st, 1919that said stumpage was not so aavilable; that same was necessary for the' continued operation of said Canal Lumber Company; that said stumpage was not on said day or at any time" prior to the institution of this suit available for logging or milling purposes as in said contract agreed.”

The contention of the contesting defendants, appellants here, is that by its contract complainant conveyed to Rentz the “stumpage” described in the contract, subject to the terms and conditions of the several contracts referred to, in consideration for which Rentz agreed and promised to pay an-agreed consideration in fixed installments at stated periods; that certain terms and provisions of the contract required by complainant to be complied with, namely, the making available by complainant of the “stumpage” on all the land described in the contract west of the East Coast Canal by October 1, 1919, were not performed and therefore complainant is not in position to demand or enforce payment by these defendants, as successors ' of Rentz, of amounts alleged in the bill to be due by them under his contract of purchase.

The supplemental contract of December 11, 1917, which is in the form of a letter from one who may, so far as this proceeding is concerned, be regarded as the original owner of the property conveyed to his immediate grantee) contains the following paragraph:

“It is understood that I now, and hereby, deliver to you to cut about 13,000 acres of said land according to the list hereto attached, which list is information and does not alter original contract. (I will also deliver for the purpose of being cut the balance of the timber on the west side of the canal on October 1st, 1909), which will include all the timber on the west side of the canal not now delivered and if possible I will begin these deliveries in October, 1918.”

It is stated in the brief of appellee, and seems to be conceded, that the date “October 1, 1909” stated in this quoted paragraph, is error and should be October 1, 1919, and this must, in the very nature of things, be true since the date of the instrument is December 11, 1917, and the quoted paragraph, with respect to the date mentioned, clearly refers to a future event. By comparing the stricken paragraph of the answer with this paragraph of the contract, it will be easily recognized that the defense attempted to be set up is based upon this paragraph of the contract, defendants contending that Rentz acquired “all of the stump age” coming within the terms of the contract of October 1, 1909, and the supplement thereto, from which the foregoing paragraph is quoted. If the series of contracts considered as a whole are susceptible of this construction, then clearly there is some basis for defendants’ contention, and the order striking the quoted paragraph from the answer was error.

On the other hand, complainant, appellee here, contends that by the express terms of the contract between complainant and Rentz he (Rentz) acquired only the timber described in said original contract and supplement thereto “now available,” that is to say, “available” or released and subject, under the terms of the original contract, to be cut and removed on the 15th day of July, A. D. 1918, the date of the contract between complainant and Rentz, and that his successors, the contesting defendants, received from him only such interest as he possessed; that by the terms of the supplemental contract the timber on the west side of the canal was not available until October 1, 1919, and, not being available on July 15, 1918, the date of the contract between complainant and Rentz, it was not conveyed to him.

It may be admitted that the situation is complicated and confused somewhat by making each 'of the series of contracts subject to the terms and conditions of each preceding contract of the series, rendering difficult the ascertainment of the true design of the parties. The intent of the parties with respect to any feature of the contract must be determined from an examination of the whole of the contract, including in this instance all of the contracts, the terms and conditions of which are made a part of the contract under consideration. The interpretation should be of the whole instrument and not of disjointed parts of it. 6 R. C. L. p. 837; West Yellow Pine Co. v. Sinclair, (Opinion filed January 27, 1922), 83 Fla. 118, 90 South. Rep. 828; Dekle v. Valrico Sandstone Co., 74 Fla. 346, 77 South. Rep. 95; Ansley v. Graham, 73 Fla. 388, 74 South. Rep. 505; Ross v. Savage, 66 Fla. 106, 63 South. Rep. 148; L’Engle v. Overstreet, 61 Fla. 653, 55 South. Rep. 381; Brown v. Beckwith, 60 Fla. 310, 53 South. Rep. 542; Escambia Land, etc. Co. v. Ferry Pass, etc. Assn., 59 Fla. 239, 52 South. Rep. 715, 138 Am. St. Rep. 321; Hull v. Burr, 58 Fla. 432; 50 South. Rep. 754. It is not enough to i look to an isolated phrase or paragraph of the contract in an effort to-determine its true meaning. This seems to be the defect in the construction adopted by complainant.

From the series of' contracts involved, it appears generally that the parties were dealing with a manufacturing plant and a tract of land, the timber upon which was to be manufactured into lumber by the respective purchasers ; that this timber was not, at the time of the original contract nor at the time of any of the subsequent contracts of the series, all available for cutting and removal; that although the tract of land was dealt, with as a whole in the contracts, the -timber, which was the real subject of the contracts, became available -by sections or tracts in installments as it was released from turpentine privileges reserved by the original owner; that the cutting and removal of the timber sold was to proceed in an orderly way from section to section as released, the cutting upon a section to be continued after being commenced until all the timber of the dimensions conveyed thereon should be removed, and that payments under the contract were estimated and fixed at installments sufficient to pay for the timber before or as it was removed by the purchaser under the contract. From all of which it would seem that the several parties, as they entered into the several contracts, contemplated a manufacturing plant and the timber supply available thereto as a single enterprise, and that each of the transactions- was intended as a transfer from each party to his successor of the plant and the timber .described in the several contracts. Under this view the construction, placed by complainant upon the contract, is untenable. -It seems to us, in view of the various provisions of the contract, which is concededly executory, looking 'to the cutting and manufacture of the timber and payments required to be made therefor, which illuminate and explain the clause describing the property conveyed, that complainant did not intend to convey and that defendant Rentz did not intend to purchase merely the timber “now available” in the sense that his purchase included only the timber that had been at the date of his contract released from the turpentine privileges, but that his purchase included “all of the stumpage coming within the terms” of the original contract or conveyance then remaining upon the land, and that the term “now available” as employed in the contract should be read as synonomous with “yet available.” This interpretation is more consistent with the general intent of the contract and with the common sense of the thing. If this were not true, why should the contract purport to sell “all of” the stumpage “coming within the terms of the aforesaid agreement of October 1, 1909, and the supplement thereto dated December 11, 1917, ” when, according to the terms of the supplemental contract mentioned, the balance of the timber on the west side of the canal was not to be delivered until October 1, 1919, following? This view is re-enforced by reference to the contract under which complainant claims containing a description of the same property as conveyed to it. By that contract, which of course antedates the contract between complainant and defendant Rentz, complainant was granted all of the stumpage described in the original contract of October 1, 1909, and the supplement thereto “now available for logging and milling purposes,” that is to say, “available” on January 30, 1918, the date upon which complainant acquired title. If the expression “now available” in the contract between complainant and Rentz is to be given the literal and limited construction contended for by complainant, it would of necessity be given a like meaning in the contract or conveyance under which complainant claims, with disastrous results to his title to all the property except that “now available” at the time of his purchase.

This discussion results in the adoption generally of the interpretation of the contract contended for by appellants. Upon this construction of the contract, where the defense attempted to be set up in the stricken paragraph of the answer is sufficiently pleaded, defendants should not be deprived of an opportunity to offer proof in support of such defense. Pitts v. Powledge, 56 Ala. 147; Durment v. Tuttle, 50 Minn. 426, 52 N. W. Rep. 909; American Assn. v. Short, 97 Ky. 502, 30 S. W. Rep. 978. Whether the measure of defendants’ loss or damage is upon the basis of a total failure to deliver or make “available” the “balance of the timber” conveyed upon the west side of the canal, or upon the basis of a delay beyond the date stated for such delivery, is not clearly averred, but it can not be said that the matter pleaded, if proved, is wholly insufficient as a defense to the bill. Walker v. American Agricultural Chemical Co. (Opinion filed January 30, 1922), 83 Fla. 153, 90 South. Rep. 696; Southern Ferro Concrete Co. v. Federal Terra Cotta Co., 79 Fla. 376, 84 South. Rep. 171; Campbell v. A. L. Wilson Co., 74 Fla. 608, 77 South. Rep. 540; Oneida Land Co. v. Richard, 73 Fla. 884, 75 South. Rep. 412.

The decre appealed from is reversed.

Browne, C. J., and Taylor and Whitfield, J. J., concur. Ellis, J., dissents.