Brown & Hackney v. Daubs

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: Brown & Hackney v. Daubs, 213 S.W. 4, 139 Ark. 53 (Ark. 1919)
• Decision Date: 26 May 1919
• Docket Number: 3
• Parties: BROWN & HACKNEY v. DAUBS

213 S.W. 4

BROWN & HACKNEY v. DAUBS

139 Ark. 53

No. 3

Supreme Court of Arkansas

May 26, 1919

Appeal from Dallas Circuit Court; Turner Butler, Judge; reversed.

STATEMENT OF FACTS.

W. H Daubs sued Brown & Hackney, Incorporated, to recover the possession or the value of certain saw logs mentioned in the complaint.

The defendant filed an answer denying that the plaintiff owned the logs, and also filed a bond to retain possession of them.

The material facts are as follows: W. H. Daubs was the owner of about 1,000 acres of timber lands situated in Cleveland and Dallas counties in the State of Arkansas. In July, 1917, he made a contract in writing for the sale of the timber on these lands to Brown & Hackney, Incorporated, for the sum of $ 5,100, of which the sum of $ 2,100 was paid in cash and the balance of $ 3,000 was evidenced by a promissory note due on year from date. The timber contract, after describing the lands and reciting the consideration, contained the following:

"The said party of the first part does hereby bargain, grant, sell and convey unto the said party of the second part, their successors and assigns forever, all the timber, save the hickory timber, on the northeast quarter of section thirty-five (35) and all the gum timber on all of the above described lands, measuring twenty inches in diameter above twelve feet from the stump, it being understood that all tops of trees left on the ground after the cutting of said timber is to become the property of the said party of the first part, and for the purpose of selling and removing said timber the said party of the second part, their successors to enjoy for the purpose aforesaid, full and free ingress and egress through and over any portion of said lands leading to the Rock Island Railway or any point the party of the second part may designate to haul and load said timber."

The contract, also, provided that the purchasers should have three years within which to remove the timber from the lands.

The Brown & Hackney Company entered into possession of the lands and began to cut all the oak and gum timber on the northeast quarter of section 35. Daubs ordered the company to stop claiming that under the terms of the contract that it was only entitled to the oak and the gum timber measuring 20 inches in diameter above 12 feet from the stump. The Brown & Hackney Company continued to cut the timber, claiming that under the language of the contract it was entitled to all the oak and gum timber regardless of size. Hence this lawsuit.

The court was of the opinion that the contract was ambiguous in its terms and permitted the plaintiff to testify that he only sold the oak and gum timber 20 inches in diameter and over 12 feet from the stump and that the contract was so understood by the parties to it; that he owned a small mill which was situated on these timber lands and for that reason did not sell the small oak and gum trees; that the defendant cut and removed from the northeast quarter of section 35 referred to in the contract, a quantity of oak and gum timber under 20 inches in diameter at the ground; that it hauled the logs to Ivan, Arkansas, and loaded them on the cars. The value and quantity of the timber cut by the defendant was also shown by the plaintiff. Other evidence was adduced by the plaintiff tending to corroborate his own testimony.

On the other hand, it was shown by the representative of the defendant company that the parties first negotiated for the timber on the lands other than the northeast quarter of section 35, described in the written contract, and were unable to agree on the price therefor; that the plaintiff then proposed to give him in addition all the timber on the northeast quarter of section 35, except the hickory and all the gum measuring 20 inches in diameter above 12 feet from the stump on all the other lands for the sum of $ 5,100, and that this offer was accepted; that the written contract was intended to express this agreement.

The jury returned a verdict for the plaintiff and the defendant has appealed.

Judgment reversed and cause remanded.

T. D Wynne, for appellant.

The court erred in holding that the timber contract was ambiguous and susceptible of more than one construction, and in permitting Daubs to testify as to what his intention was in selling the timber and the kind and quantity of timber contrary to the language of the contract, stating the intention of the parties and in stating to the jury that the contract was of doubtful meaning and that it was their province to determine the force and effect of the terms employed, and also erred in refusing to give the instructions requested by defendants. Instruction No. 4 requested by appellant was improperly refused. The contract was not ambiguous or capable of more than one construction, and parol evidence was not admissible to vary its terms or contradict it. 6 R. C. L. 836; 94 Ark. 493; 116 Id. 212; 111 Id. 29; 39 Id. 447; 52 Id. 254; 62 Id. 133.

Punctuation and bad grammar do not vitiate a contract. 6 R. C. L. 846. The only doubtful meaning relates to the size of the gum timber sold. It was plainly error to charge the jury that it was for them to determine whether or not appellants had the right to cut oak only 20 inches in diameter and twelve feet from the stump, as the contract was not ambiguous. See cases supra.

Paul G. Matlock, for appellee.

The contract is ambiguous and parol testimony was admissible to explain its meaning. The court properly refused instruction No. 4. The cases cited by appellant do not support his contention. 111 Ark. 29; 39 Id. 442; 44 Id. 447; 52 Id. 254; 62 Id. 133. These cases are really against his contention. See 70 Ark. 99; 93 Id. 352; 108 Id. 552. The verdict is amply sustained by the evidence and should be sustained.

OPINION

HART, J., (after stating the facts).

The court was of the opinion that the timber deed was ambiguous and permitted the plaintiff to testify that he sold the defendant the oak and gum timber on all the lands mentioned in the deed, which was 20 inches and over in diameter 12 feet from the stump, and did not sell on any land the oak and gum timber under 20 inches in diameter 12 feet from the stump.

On the other hand, the defendant claims that he bought all the gum and oak timber on the northeast quarter of said section 35 both over and under 20 inches in diameter. The court also embodied the contention of the plaintiff in its instruction to the jury and left it to the jury to decide whether the contract was as contended for by the plaintiff, or by the defendant.

The court was right in holding the contract to be ambiguous; but was wrong in permitting the plaintiff to testify that it was the intention of the parties to except from the terms of the contract all of the oak timber under 20 inches in diameter 12 feet from the stump in the northeast quarter of section 35, and in submitting the plaintiffs contention, in this respect, to the jury. The contract contains two descriptions of timber sold, each of which is perfectly clear in itself, but which are mutually inconsistent and...