Allen v. Crank

• Citation: 23 S.E. 772
• Court: Virginia Supreme Court
• Decision Date: 19 December 1895
• Parties: ALLEN v. CRANK et al.

23 S.E. 772

ALLEN

v.CRANK et al.

Supreme Court of Appeals of Virginia.

Dec. 19, 1895.

Contracts — Contemporaneous Understanding —Parol Evidence—Sale op Timber— Laps—Custom and Usage.

1. In a proceeding to construe a contract by which plaintiff sold to defendant "all the timber" on an estate, testimony that at the time of its execution there was a contemporaneous understanding that the contract included only "pine" timber is inadmissible where no fraud was shown in its procurement.

2. A contract which provides for the sale of "all the timber" six inches in diameter, but is silent as to laps, passes the laps also by local custom and usage of lumbermen.

Appeal from circuit court, Goochland county.

Bill by Virginia M. Allen against J. R. and W. J. Crank to restrain the use of certain land, and to have a contract for the sale of timber construed. ' Prom a decree in favor of defendants, plaintiff appeals. Affirmed.

W. W. & B. T. Crump and B. O. James, for appellant.

Leake & Carter and A. K. Leake, for appellees.

HARRISON, J. On the 16th day of September, 1890, a contract in writing, signed by the parties, was entered into between Mrs. Virginia M. Allen of the first part and J. R. and W. J. Crank of the second part for the sale of certain timber. The only portion of this contract necessary to be here referred to is as follows: "Witnesseth, that the said party of the first part doth hereby convey, sell, assign, and transfer to the said second parties all her right, title, and interest to and in all the timber now standing on the estate called 'Upper Tuckahoe, ' said standing timber to be not less than six inches in diameter, with free right of way to the parties of the second part of egress and ingress for the purpose of hauling and transferring said timber when felled."

On the 2d day of April, 1892, Mrs. Allen filed her bill asking for an injunction, which was granted, to restrain the appellees from using a certain portion of her pasture land, then being occupied by them, as a location for operating their steam sawmill; and further asking that the court would construe the contract between the parties, and compel the appellees to remove their sawmill and appliances from the pasture land and property of appellant; and that proper damages might be awarded for the unlawful intrusion upon and use of her property by the appellees.

On the 5th day of September, 1S92, the appellant filed an amended and supplemental bill, in which she alleges that the appellees committed a fraud upon her in procuring the contract for the sale of the timber; that she only sold appellees the pine timber on the estate called "Upper Tuckahoe, " and that the word "pine" was omitted from the contract upon the assurance of appellees that it was not necessary' to put it in, as they all knew she had only sold pine timber to them.

These bills were answered by the appellees, and evidence was taken by both parties. Upon the hearing the court dissolved the injunction, decreed that there was no fraud in the procurement of the contract, that the appellees were not violating the same, and dismissed the bills.

The chief complaint of appellant is that the circuit court refused to reform the written contract by holding that the timber mentioned therein was restricted to pine timber.

There is no rule of evidence better settled than that which declares...