Dorsey v. Clements

• Decision Date: 09 September 1947
• Docket Number: 15858.
• Citation: 44 S.E.2d 783,202 Ga. 820
• Parties: DORSEY v. CLEMENTS.
• Court: Georgia Supreme Court

44 S.E.2d 783

202 Ga. 820

DORSEY v. CLEMENTS.

No. 15858.

Supreme Court of Georgia

September 9, 1947

Rehearing Denied Oct. 23, 1947.

Certiorari from Court of Appeals.[Copyrighted Material Omitted]

Syllabus by the Court.

1.The expression in a timber lease, 'timber suitable for turpentine purposes,' is not ambiguous as to the size of timber that would be suitable for turpentine purposes, but under applicable rules of construction, it would mean any pine timber, of whatever size, that is ordinarily used for such purposes; the size being determined by custom, if one is shown to be applicable.

(a) If there was no custom of business or trade such as became by implication a part of the contract, then it would be permissible to show by other evidence what class of trees with respect to size could in ordinary prudence be used for turpentine purposes; this being in law the true criterion, whether shown by proof of custom or other proof.

2.Under the preceding rulings, the Court of Appeals erred in holding that the quoted expression is ambiguous and subject to explanation by proof of a contemporaneous oral agreement between the parties as to what it should be construed to mean and include.

On September 11, 1941, Mrs. Lydia Clements executed a lease to J. H. Dorsey granting the right to use for turpentine purposes 'all and singular, the timber suitable for turpentine purposes on' certain lots and fractional lots of land in Crisp County, more fully described in the lease.Thereafter Mrs. Clements sued Dorsey for damages, alleging that at the time of executing the lease she had a definite agreement and understanding with him that the language of the contract as above quoted should be construed to mean and include only such trees as were on the date of the contract 10 inches in diameter 54 inches above the ground, and that the defendant had cupped, boxed, and used a stated number of pine trees which were of less dimensions than were thus agreed upon, and which were not suitable for turpentine purposes, nor embraced within the terms of said lease contract.The trial court overruled a general demurrer to the petition, and the Court of Appeals affirmed that judgment.Dorsey v. Clements,74 Ga.App. 877, 41 S.E.2d 797.A more complete statement of the facts will be found in that report.Dorsey presented to this court a petition for certiorari, which was granted.

George P. Wright, J. W. Dennard, and John H. Dorsey, all of Cordele, for plaintiff in error.

H. G. Rawls, of Albany, for defendant in error.

BELL Justice.

A phrase or clause in a contract, as a timber lease, may be plain and unambiguous as to one or more matters, and yet be ambiguous with respect to other matters.The question here is whether the phrase, 'timber suitable for turpentine purposes,' is ambiguous with respect to the minimum size of pine trees that would be suitable for turpentine purposes.The Court of Appeals held that such expression is ambiguous, and in this we think that the court erred.

'The construction of a contract is a question of law for the court.Where any matter of fact is involved (as the proper reading of an obscurely written word), the jury should find the fact,'Code, § 20-701.'The cardinal rule of construction is to ascertain the intention of the parties.If that intention be clear, and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction.'§ 20-702.'Parol evidence is inadmissible to add to, take from, or vary a written contract.All the attendant and surrounding circumstances may be proved, and if there is an ambiguity, latent or patent, it may be explained; so if a part of a contract only is reduced to writing (such as a note given in pursuance of a contract), and it is manifest that the writing was not intended to speak the whole contract, then parol evidence is admissible.''Words generally bear their usual and common signification; but technical words, or words of art, or used in a particular trade or business, will be construed, generally, to be used in reference to this peculiar meaning.The local usage or understanding of a word may be proved in order to arrive at the meaning intended by the parties.''The custom of any business or trade shall be binding only when it is of such universal practice as to justify the conclusion that it became, by implication, a part of the contract.'§ 20-704, subds. 1-3.See alsoCode, §§ 38-501, 38-502.'The intention of the parties may differ among themselves.In such a case, the meaning placed on the contract by one party, and known to be thus understood by the other party, at the time, shall be held as the true meaning.'§ 20-703.This provision, however, can have no application unless the contract is ambiguous.Holloway v. Brown,171 Ga. 481, 483, 155 S.E. 917.

In the instant case, the plaintiff alleged in effect that at the time the lease was executed, she had a definite agreement and understanding with the defendant that the phrase, 'timber suitable for turpentine purposes,' should be construed to mean and to include only such trees as were on the date of the contract 10 inches in diameter 54 inches above the ground.There is no contention that this agreement was in writing, but it has been treated by the parties as being a mere oral agreement, and it was so treated by the Court of Appeals.There is no allegation that any fraud whatever was perpetrated upon the plaintiff, and the suit is a mere action for damages, with no effort to reform the lease as for fraud, accident, or mistake.

We agree with counsel for the lessor (plaintiff in the trial court, defendant in certiorari here) that, unless the court can construe this contract and determine its legal meaning, then we would be obliged to hold that it is ambiguous and subject to explanation by proof of such agreement.So the question is squarely presented as to whether the contract is ambiguous with respect to the minimum dimensions of pine trees that are suitable for turpentine purposes.

This court has several times held that the word 'timber' is not a word of invariable meaning, but we are not aware of any decision holding that, where a contract conveys or leases 'all the timber' on a described tract of land, such expression is ambiguous so as to allow proof of a prior or contemporaneous parol agreement as to what it should be construed and understood to mean.On the contrary, the court has itself construed such contracts in the light of all the attendant and surrounding circumstances, so far as they appeared, and has thus resolved the variableness as a matter of law according to the terms of each particular contract.Pennington v Avera, 124 Ga. 147, 52 S.E. 324;Vandiver v. Byrd-Matthews Lumber Co.,146 Ga. 113, 90 S.E. 960;Reynolds v. Wingate,164 Ga. 317, 138 S.E. 666;Neal Lumber, etc., Co. v. O'Neal,175 Ga. 883, 166 S.E. 647.See alsoDickinson v. Jones,36 Ga. 97.We do not in this case have the word 'timber,' without further words qualifying and limiting its meaning, but we have the adjective phrase, 'suitable for turpentine purposes,' defining and limiting the timber that is covered by the contract.

The word 'suitable' has been given various definitions, including: adapted, appropriate, apt, fit, proper.Webster's Twentieth Century Dictionary (1938) 1663;60 C.J. 1003.These words are mere synonyms, however, and seemingly no word would be more suitable in the instant contract than the word 'suitable' itself, unless specific dimensions had been stated; but even this fact does not tend to show that the word is an ambiguous term as used in the present contract.

The word 'ambiguity' has been variously defined by the courts, but for the purpose of this case it is sufficient to say that a word or phrase is ambiguous only when it is of uncertain meaning, and may be fairly understood in more ways than one.Novelty Hat Mfg. Co. v. Wiseberg,126 Ga. 800, 55 S.E. 923;First National Bank of Sparta v. Hancock Warehouse Co.,142 Ga. 99(1), 82 S.E. 481.

'A contract may be so clear as not to require interpretation but a mere lack of clarity on casual reading is not the criterion for determining whether a contract is afflicted with ambiguity within the rule as to the admission of parol evidence to explain its meaning.Nor is a contract ambiguous within that sense merely because it may be even difficult to construe.The construction of a contract, if needed, being a question of law for the court, as well as a duty that rests upon the court, there can be no ambiguity within the rule to which we have referred, unless and until an application of the pertinent rules of interpretation leaves it really uncertain which of two or more possible meanings represents the true intention of the parties.'McCann v. Glynn Lumber Co.,199 Ga. 669, 679, 34 S.E.2d 839, 845.In Parham v. Robins,197 Ga. 386, 29 S.E.2d 608, 612, it was said: 'The parties to the conveyance are presumed to have known the law of this State, as declared in our decisions, at the time of its execution, and, hence, to have intended that the word 'timber' when used therein should have the meaning that the decisions of this court theretofore gave it.'The question in that case was as to the meaning of the phrase 'merchantable timber.'On the same principle, the lease here should be construed also in the light of the law touching waste and ordinary care and diligence.Code, §§ 85-604, 85-803, 105-201.Indeed, it is a well established rule that the laws which exist at the time and place of the making of a contract enter into and form a part of it.West End & Atlanta Street R. R. Co. v. Atlanta Street R. R. Co., 49 Ga. 151(5), 159;Bank of Chatsworth v....