Pennington v. Avera , 124 Ga. 147 ( 1905 )

Cobb, P. J.

1. “Timber” is not a word of invariable meaning. It may be used to designate wood suitable for building houses or ships, or for use in carpentry, joinery, etc., or trees cut down and squared, or capable of being squared, or cut into beams,• rafters, boards, etc., or growing trees suitable for constructive uses, or trees generally, or woods, or a single piece of wood, whether suitable for use in some construction, or already in use. Century Diet. Or the body, stem, or trunk of a tree. Bouv. Diet., Bawle’s Eevision.

‘The meaning to be given to the term depends upon the connection in which it is used, and sometimes upon the occupation of the person who uses the term. In construing a contract where the word appears, it is not only proper, in determining what is intended by the parties, to look to the terms of the contract, but also the occupation of the contracting parties, and the purposes for which the contract was entered into. See, in this connection, United States v. Stowers, 14 Fed. 824. In the present ease it is contended by one party to the contract that the term “timber” therein used conveyed all of the trees of the dimensions stated, except the stump two feet high from the ground. The other party contends that under the contract only such portion of the trees was conveyed as was capable of being sawed into lumber. The controversy is as to the limbs and tops, which, it is conceded, could not be converted into lumber. The contract was for all the timber for sawmill purposes, which means all the timber suitable for sawmill purposes. Martin v. Peddy, 120 Ga. 1079 (4); Allison v. Wall, 121 Ga. 823(6). It is said that the contract was in effect for the sale of the trees, that the words “for sawmill purposes” were descriptive of the trees that passed, and that all of the trees of the size indicated, any portion of which was capable of being converted into lumber, passed under the contract. Of course there may be a valid sale of trees which would pass to the purchaser every part and portion thereof. When, however,' the contract under consideration is taken in its entirety, it does not appear that the parties had in mind any transaction involving the sale of the trees as such. The buyer was to locate a sawmill upon the premises. He was to have a given time to saw that which he bought into lumber. When the trees were cut for the purpose of sawing, a stump of a given height was to be left, and any cutting which left a stump of less than that height was to be a violation of the contract and terminated the same. On the one side was the owner of the land and the trees. On the other side was the operator of the sawmill. The term “timber for sawmill purposes,” construed to mean timber suitable "for sawmill purposes, was to such an extent descriptive of the article sold that all timber which could be sawed into lumber became the property of the buyer, and could be used by him for any purposes he saw fit, whether lumber or otherwise. Gray Lumber Co. v. Gaskin, 132 Ga. 342(5). The fact, however, that the buyer was a sawmill man is to be looked to in determining whether under the contract it was the intention of the parties that any greater portion of the trees would pass than that which would be converted into lumber in the event the buyer saw fit so to use the same. When the occupation of the buyer is taken into consideration, and the contract is construed as a whole, the proper conclusion to be reached is that it was the intention of the parties that only such portions of the trees as were capable of being converted into lumber passed under the contract.

2. Complaint is made that the court rejected testimony that it was the intention of the parties at the time the contract was made that the buyer was to have the tops, limbs, and trees unfit for timber of the dimensions specified under the contract. There was no error in rejecting this evidence. The contract was in writing, and properly construed was unambiguous, and the effect of the evidence would have been to vary the terms thereof. In the case of Richards v. Gilbert, 116 Ga. 382, relied on by counsel for plaintiff in error, the parol evidence as to the understanding between the parties that at the time of the execution of the mortgage it was understood that certain counters and tables on the mortgaged premises were not included was admitted without objection, and the case was decided upon the evidence as it appeared in the record. Attention is called to this fact in Wolff v. Sampson, 123 Ga. 400.

Judgment affirmed.

All the Justices concur.