Bros v. C. W. Lane & Co. Inc

• Decision Date: 18 November 1914
• Docket Number: (No. 303.)
• Citation: 167 N.C. 267,83 S.E. 463
• Court: North Carolina Supreme Court
• Parties: LEFLER BROS. v. C. W. LANE & CO., Inc., et al.

83 S.E. 463

167 N.C. 267

LEFLER BROS.

v.C. W. LANE & CO., Inc., et al.

(No. 303.)

Supreme Court of North Carolina.

Nov. 18, 1914.

1. Contracts (§ 147*)—Construction.

A contract will be so construed as to effectuate the intention of the parties as embodied in the entire instrument, and, if reasonably possible, to give effect to every part thereof.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.*]

2. Contracts (§ 231*)—Timber Contract-Construction.

Under a contract binding plaintiffs to cut and remove all timber from a hundred-foot right of way between certain stations in consideration of $30 per acre, and specifying that, in consideration of said sum, plaintiffs "further agree to clear all brush and rubbish off the right of way hereinto mentioned and cut all stumps, " they were not to be paid in any event for the entire amount covered by the boundary worked over, but were to be paid only for such portions as were cleared according to the specifications of the contract, where a further provision that the work was to be paid for "according to admeasurements made by the engineer in charge" disclosed that such was the intention of the contracting parties.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1046, 1047, 1051, 1052; Dec. Dig. 8 231.*]

Appeal from Superior Court, Davidson County; Lane, Judge.

Action by Lefler Bros, against C. W. Lane & Co., Incorporated, and others. From judgment for plaintiff, defendants appeal. New trial ordered.

The action was to recover the price of certain work done by plaintiffs for defendant under the following written contract:

"Be it known as an agreement between C. W. Lane & Co., Incorporated, parties of the first part, and Lefler Bros., parties of the second part, that we, parties of the second part, for the sum of $30 per acre, we, the parties of the second part, agree to cut and move all timber from a 100-foot right of way between stations 90 and * * * on the N. C. & Y. Ry. And in consideration of the said sum of $30 per acre, we, the parties of the second part, further agree to clear all brush and rubbish off the right of way hereinto mentioned and cut all stumps so that the tops will not exceed four inches above surface. This agreement is accepted and signed before witnesses on this 6th day of August, 1912."

There was evidence on the part of plaintiff tending to show that, pursuant to the agreement, they had removed timber, etc., for a certain distance along right of way, and the amount cleared up was 66 acres, arrived at by estimating the entire acreage on the right of way of 100 feet for the distance they had worked over, and allowing no deduction for land in cultivation or otherwise cleared and opened; that the amount in question had been ascertained by multiplying the length by the width of right of way, etc., and the sum due on that basis of 66 acres, after crediting sums already paid, was $680.

There was evidence on part of defendant to the effect that the amount actually cleared by plaintiffs, according to specifications of the contract, was only 45.05 acres, arrived at by survey and admeasurement of H. B. Bayley, the engineer in charge. That officer testified that, if there was any clearing at all done for the distance and within the 100 feet right of way, it was allowed for in the estimate. That defendant was ready and willing to pay on this basis and had offered to do so. The court charged the jury if they believed the evidence they would render verdict for amount claimed, $680, with interest. Verdict for such amount. Judgment, and defendant excepted and appealed.

Phillips & Bower, of Lexington, for appellants.

E. E. Raper, of Lexington, for appellee.

HOKE, J. [1] In construing written contracts, it is a well-recognized rule,...