Great Southern Lumber Co. v. Newsom Bros.

• Decision Date: 29 May 1922
• Docket Number: 22598
• Citation: 129 Miss. 158,91 So. 864
• Court: Mississippi Supreme Court
• Parties: GREAT SOUTHERN LUMBER CO. v. NEWSOM BROS

91 So. 864

129 Miss. 158

GREAT SOUTHERN LUMBER CO. v. NEWSOM BROS

No. 22598

Supreme Court of Mississippi

May 29, 1922

1. LOGS AND LOGGING. Trees three to eight inches in diameter having a market price held included in a deed conveying "merchantable timber."

Where the testimony shows that, at the time the plaintiff purchased the merchantable timber on a sixteenth section of land. pine trees from three to eight inches in diameter were sold in that locality to paper mills to be manufactured into paper and that there was a market price for timber of that kind for that purpose, then this small timber was merchantable timber and plaintiff by his deed obtained the title to it.

2. LOGS AND LOGGING. "Merchantable timber" is such as is used for building and manufacture and has a market price in the vicinity. "Merchantable timber" is such timber as is used for building purposes or in the manufacture or construction of useful articles and has a market price, is generally sold in the market in that vicinity.

3. LOGS AND LOGGING. The word "merchantable" in deed of marketable timber is not limited to sawmill timber, but to such as is in general demand and has a market for commercial purposes; "merchantable pine timber."

Held that the following instruction in this case is correct "The court instructs the jury for the plaintiffs that the word 'merchantable' means anything that is marketable, sound, and undamaged for the purpose for which such article is to be used, and for which there is a general demand on the open market in the territory where such article is kept for sale or found. The court further instructs the jury that 'merchantable pine timber' does not necessarily mean only such timber as can be used for sawmill purposes, but it means any kind of pine timber for which there is a general demand and market for commercial purposes in the territory where such pine timber is."

HON. G WOOD MAGEE, Special Judge.

APPEAL from circuit court of Marion county, HON. G. WOOD MAGEE Special Judge.

Suit by Newsom Bros. against the Great Southern Lumber Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Judgment affirmed.

Mounger, Ford & Mounger, for appellant.

Interpreting the meaning of this deed, and in seeking a definition of the word "timber" as therein used, resort may be had to general authorities. The authorities are very numerous but we do not find much conflict in them. Timber is defined to be trees useful for building and construction purposes. Webster defines timber as: "That sort of wood which is proper for building." 43 Tex. 347. In Nash v. Driscoe, 51 Me. 417, the following language is used: "The signification given to the word 'timber' by the court was correct. The words from which it was derived and incorporated into the English language all relate to the erection or construction of buildings or chattels. Webster defines it as "that sort of wood which is proper for building." . . . Firewood or what is sometimes called 'cordwood' cannot properly be said to be constructed or manufactured. The materials of which it is composed are not called timber, though timber might be used for that purpose. In a contract for the purchase of timber, the purchaser acquired no title to trees not suitable for any purpose but for firewood. The construction of a written contract involving the meaning of the words therein is not a question of fact, but one of law." Qimmerman Mfg. Company v. Wilson (Ala.), 80 So. 422; Alcutt v. Lakin, 66 Am. Dec. 739; Donworth v. Sawyer, 94 Me. 443, citing Century Dictionary, 17 R. C. L. at page 1066; Balderson v. Seeley, 160 Mich. 186, 136 Am. St. Rep. 428.

Instruction No. 3 granted for the plaintiffs. By this instruction the court told the jury that "merchantable pine timber" does not necessarily mean only such timber as can be used for sawlog purposes, but it means any kind of timber for which there is a general demand and market for commercial purposes in the territory where such pine timber may be. This instruction made the test of its being timber the fact of there being a general demand and market for commercial purposes. This was erroneous. There may be a general demand and market for wood to be manufactured out of trees. This instruction gave the jury to understand that if the timber was salable, that it was merchantable timber. Salability would make it merchantable, but salability would not make it timber. If it was salable only as wood, it would still be merchantable, but not timber. The question was whether the subject-matter of the alleged contract, that is to say, the wood which could be manufactured out of the little second growth, old field pines was "timber" or was "wood," and the court's instruction on that point was erroneous and misleading. This instruction should be considered in connection with instruction No. 5, which was requested on behalf of the appellant, and which the court refused to grant. We submit that the tatter instruction, the one which the court refused to give, contained a correct definition of the words "merchantable timber." By this instruction the court was asked to instruct the jury in the following terms: "Timber consists of trees or bodies of trees either standing or lying which are suitable for building or construction purposes, or young trees, which after further growth, may become so, and merchantable timber consists of such trees or bodies of trees as are presently salable for use in building or for construction purposes without further growth. "

If the jury had been given the benefit of this instruction, they would have had a means by which to determine whether the wood which the appellees were claiming that the appellant should have permitted them to load and should have purchased from them, was obtainable from merchantable timber, which the appellees had a right to cut from the sixteenth-section lands in question. We submit, therefore, that the court erred both in granting instruction No. 3, which the court did grant on behalf of the plaintiffs, and erred also in refusing to grant instruction No. 5, which was requested on behalf of the defendant, and which the court refused to grant.

Instruction No. 2, Granted for Plaintiffs.

(R. P. 332.)

By this instruction the court told the jury that if they found for the plaintiff they must assess damages to compensate him for the profits which the plaintiff would have made on the pulp wood on the lands, had the defendant permitted the plaintiff to complete his contract. This instruction entirely disregarded the question of the plaintiff's title and treated the matter as if the title to the wood was settled, and the instruction entirely disregarded whether the wood might be made from tops or from small trees, and disregarded the question whether the plaintiff had the title to all or only a part of the wood upon this land. It was in evidence that, and it is not disputed, the pulp wood made from the bodies of small sap pines was more valuable than that made from the tops of trees. Wood made from small sap pines was worth five dollars per cord. The appellees brought their suit claiming that they contracted to deliver all the pulp wood, but in their declaration they did not mention the wood to be manufactured from tops, but they did mention and declare that the contract had reference to the wood to be manufactured out of the small growth of sap pines. The appellees, the plaintiffs, in the court below, did not have any right to claim that they could perform the contract by showing their ability and willingness to deliver the wood which they could make out of tree tops. Instruction No. 2 was, therefore entirely erroneous.

Instruction No. 1, requested on behalf of the appellant, and refused. This was a peremptory instruction requested on behalf of the defendant. The same should have been granted. Gulfport Cotton Oil Company v. Reneau, 94 Miss. 904; Moore v. Love, 57 Miss. 765; Atherton v. Newhall (123 Miss. 141), 25 Am. Rep. 47; Moore v. Love, 57 Miss. 763, 25 Am. Rep. 47.

We therefore submit and insist that this case should be reversed. We really think that there should be a judgment in the supreme court for the defendant, and if it is found that this relief cannot be granted we insist that it ought to be remanded for a fair trial under proper evidence and under proper instructions.

Rawls & Hathorn, for appellee.

We contend that our instruction No. 3 fairly and correctly defines merchantable pine timber, and that appellants refused instruction No. 5 does not correctly define "merchantable pine timber." 27 Cyc., 481, defines merchantable as being "salable and fit for the market; sound and undamaged; such as is generally sold in the market, vendible in market. However the custom and usage of the trade may control the meaning of the term in the connection in which it is employed in any particular case."

From the above it is clear that the word merchantable is correctly defined in our instruction No. 3. It is also true that it, as there defined, is...