Shackelford v. Fitzgerald , 151 Ga. 35 ( 1921 )

Beck, P. J.

(After stating the foregoing facts.) The material portions of the lease under which the defendant claimed the right to turpentine all of the trees suitable for that purpose are as follows: “The said party of the first part [Shackelford Brothers] in consideration of the sum of $950.00 . . has granted, bargained, leased and conveyed unto the said party of the second part [Fitzgerald], his heirs and assigns, at the rate of nine Hundred and fifty dollars all of the timber upon the following described tract of land, for the purpose of boxing, working, and otherwise using said timber for turpentine purposes: All of forty-two thousand boxes that E. M. Carnes had the lease on, starting at Sedge Grass Branch on the east side of Dixie Highway; land containing about 3300 acres, that the said Carnes had boxed and cupped; also place known as the Watson place containing about 1.000 acres that said Carnes had cupped and boxed. This said 1.000 acres on the west side of Dixie Highway. All lands known as Shackelford Brothers. All lands in the eighth district, Wilcox County, Georgia. To have and to hold, box, work, and otherwise use said timber for turpentine purposes unto the said party of the second part, his heirs and assigns. And it is hereby expressly covenanted and agreed that the said party of the second part may commence boxing, working, or otherwise using the said timber for turpentine purposes, or any portion thereof, at any time that said party of the second part may desire, and shall have the right to continue to box, Work, or otherwise use said timber, and every portion thereof, for the full term of two years, beginning, with reference to each portion of the timber, from the time only that the boxing and working of each portion is commenced; it being the intention of the parties that this lease shall continue to operate until all of the timber, and each and every part thereof has been boxed, worked, and otherwise used for turpentine purposes for the full period of two years. And it is further covenanted and agreed that the said party of the second part, heirs and assigns, shall have the free and unrestricted right to enter upon, occupy, and use the said land for the purpose of boxing, working, and otherwise using the timber thereon for turpentine purposes, as aforesaid, during the continuance of this lease.” A part of this written instrument was a printed form, but that part of it beginning with the words, “All of forty-two thousand boxes,” to and including the words, “ All lands in the eighth district, Wilcox County, Georgia,” is written with pen and ink, being inserted in a blank left in the printed form for the insertion of matter descriptive of the lands leased. The court below refused to hear parol evidence as to the intention of the parties in making this contract which would throw light on its meaning, holding that the written instrument was unambiguous, and, construing it as a whole, held that it conveyed all the timber on the described tract of land for turpentine purposes, and that the defendant had a right to use the same for. those purposes. The plaintiffs excepted to the judgment giving this construction to the lease, contending that the court’s construction is not the correct one. While the question is not entirely free from doubt, we have reached the conclusion that this contention of the plaintiffs is well founded. As stated above, the part of the lease written with pen and ink and inserted in the blank form seems to have been intended to describe the thing leased. It contains a more specific description of the subject-matter of the contract than that contained m the other parts of the instrument which are in the printed form and which are general in their nature. The words containing the specific description should prevail, if the two can not be reconciled. And we do not see how there could be a reconciliation of the stipulations contained in the written portion with those parts which were printed, except by the insertion of terms or explanatory words which we do not feel authorized to insert in the absence of extraneous evidence throwing light upon the intention of the parties. Moreover, where parts of a contract or instrument are in writing and other parts of it are printed, the parts in writing are to be given the greater weight. In the case of Surles v. Milikin, 97 Ga. 485 (25 S. E. 322), it was said: “It is a well-settled rule, in construing contracts, such, for instance, as policies of insurance, the main portions of which are printed and, the special or particular portions adapting it to the precise agreement of the parties are written, that the written words should be given greater force and effect than those which are printed. That rule is applicable, in principle, to the present case.” And the case in which this ruling was made involved the construction of a printed timber lease, in which certain words were interlined in writing. As we have remarked, the question as to the proper construction of this lease is a dose one, and the meaning of it is not altogether free from ambiguity; and upon another hearing it will be proper for the court to hear evidence touching the intention of the parties as to the subject-matter of the lease, if such is offered. It is true that certain testimony of the defendant was admitted which might be considered upon the questiqn of the intention of the parties; but the court evidently construed the contract without reference to this, holding that it was unambiguous; and his construction, of the instrument is based upon the terms of the instrument itself. Besides, it is recited in the bill of exceptions that the court refused to allow the plaintiffs to adduce testimony to show the intention of the parties and the meaning of the contract. This was not excepted to in such a way as to make it an assignment of error to be passed upon here; but the admissibility of the evidence offered by the plaintiffs, should it .be again offered upon the next trial, will be considered and ruled upon in the light of the holding in this decision. The error in the construction of the lease was upon the most material and possibly the controlling issue in the case, and therefore requires the grant of a new trial.

Judgment reversed.

All the Justices concur.