McCann v. Glynn Lumber Co.

• Decision Date: 09 July 1945
• Docket Number: 15189.
• Citation: 34 S.E.2d 839,199 Ga. 669
• Parties: McCANN et al. v. GLYNN LUMBER CO. et al.
• Court: Georgia Supreme Court

34 S.E.2d 839

199 Ga. 669

McCANN et al. v. GLYNN LUMBER CO. et al.

No. 15189.

Supreme Court of Georgia

July 9, 1945

Rehearing Denied July 23, 1945.

Syllabus by the Court.

In this suit for injunction to restrain the defendants from interfering with the alleged right of the plaintiffs to cut and remove timber under a timber lease, the lease contract as properly construed granted the right to cut and remove all the timber of stated kinds and dimensions on the described tract of land, at and for a stipulated price per one thousand feet, subject only to the expiration of the lease on a date therein fixed, and did not limit the amount of timber that might be so cut and removed, as contended by the defendants.

Accordingly upon the interlocutory hearing, the judge erred in holding that the contract was ambiguous on the point at issue, and in admitting over appropriate objection the parol evidence offered by the defendants for the purpose of showing an intention of the parties that only a certain quantity of timber could be so cut and removed under the right granted and it was also error, under the pleadings and the evidence not to grant an injunction as prayed by the plaintiffs.Nor should the plaintiffs have been enjoined, as was done on the prayer of the defendants.

The exception is to the refusal of the plaintiffs' prayer for an interlocutory injunction, and to the grant of an injunction against the plaintiffs on the cross-prayer of the defendants.The case involves the construction of a contract for the lease of certain timber in Glynn County.

McCann Lumber Company, a partnership, leased the timber in question from J. B. D. Paulk, as trustee, on March 1, 1943.On April 12, 1944, Glynn Lumber Company, a corporation, became the owner of the land subject to the lease, and successor to all rights of the lessor, through a conveyance of the land and an assignment of the lease by the lessor, J. B. D. Paulk, trustee.

The material portions of the lease from J. B. D. Paulk, trustee, to McCann Lumber Company are as follows:

'This agreement made and entered into on the 1st day of March, 1943, between J. D. B. Paulk, of Glynn County, Georgia, as trustee for his wife and children, as the first party, hereinafter called the vendor; and McCann Lumber Company, a co-partnership composed of W. F. McCann, J. Y. McCann, and Mrs. X. Y. McCann, all of Wayne County, Georgia, as the second parties, hereinafter called the vendees:

'Witnesseth: that for and in consideration of the sum of Thirty five thousand ($35,000) Dollars, and in consideration of the mutual covenants and agreements made, it is agreed between the said vendor and vendees as follows, to wit:

'1.The vendor owns the following described lands in Glynn County, Georgia, to wit: [the description of the land follows].

'It being distinctly understood that this lease applies only to timber on the west side of Buffalo Swamp on the property hereinabove described.

'2.The vendor hereby grants unto the vendees upon the conditions and terms herein stated a license to cut and remove the timber (either standing or on the ground) hereinafter described and located on said described lands, to wit: [the lands are again described here].

'(a) The gum and maple timber measuring 12 inches and up in diameter, 16 feet from the ground, number one (1) logs.

'(b) The cypress timber measuring 14 inches and up in diameter above the swell.

'(c) The pine timber measuring 16 inches and up in diameter, breast high, with privilege to the vendees, at its option of cutting down to 12 inches.The vendees to utilize all merchantable timber herein described.

'3.The said vendees are to pay to the said vendor $12.50 per one thousand feet, Doyle Rule.Standard logs 16' or less.

'4.The within lease shall terminate on the 31st day of December, 1946.

'5.The said vendor warrants the title to the said above described timber.'

Paragraph 6 dealt with the right of ingress and egress and the construction and maintenance of roads, runways, and bridges.

'7.The vendee has paid to the vendor contemporaneously herewith the sum of Eight Thousand ($8,000) Dollars, to be applied as payment of said lease, and it is agreed that the vendor is to retain and hold back of said payment the sum of Five Thousand ($5,000) Dollars until there is only approximately $5,000 worth of timber left to be cut on the within lease, at which time the cutting of the vendee hereunder is to be applied against said retained $5,000; Two Thousand Two Hundred Fifty ($2,250) dollars of the said $8,000 payment is to be added to the vendee's credit with said vendor on a certain prior lease dated July 28, 1941, and against said total credit the cutting on the within lease will be applied until said credit has been exhausted; then the said vendees will put up an additional $5,000 with the said vendor, the further cutting to be applied until same is exhausted, and to continue making said $5,000 deposits until same are exhausted and to be credited as above set out, until there remains only approximately $5,000 worth of timber to be cut under the within lease as hereinabove first provided for.

'The remaining $750 is to be retained by the vendor as a guarantee by the vendees that the C C C roads or fire lanes and bridges on the above described premises are to be kept passable for automobiles during the term of this lease, and if the said roads and bridges are not in passable condition at the expiration of this lease, the vendees agree at the expiration of said lease to replace all roads and fire lanes in good condition, and if they do not do so, then the $750 or any part thereof is to be applied toward placing said roads and bridges in good condition.'

Paragraph 8 of the lease related to hunting privileges.

McCann Lumber Company brought the present suit to enjoin and restrain Glynn Lumber Company and its agents from interfering with the right of the plaintiffs to cut and remove the timber under the lease, as it was alleged the defendants were doing by physical means described.Two individuals, besides the corporation, were named as defendants.

The contention of the plaintiffs is that they have the right to cut and remove the timber on the tract of land at the stipulated price of $12.50 per thousand feet, regardless of the total quantity, until the expiration of the contract on December 31, 1946.The contention of the defendants is that the plaintiffs have the right to cut only $35,000 worth of lumber, at the stipulated price per thousand feet, and that when this amount of timber is cut, the lease expires, and that more than this amount of timber had already been cut at the time the present suit was brought.This contention was embodied in the answer, which also contained a cross-prayer for injunction against the plaintiffs, to restrain them from cutting and removing any additional timber.

Upon the hearing, W. F. McCann testified: 'I knew there was a lot of good timber on the land, but did not know how much.I had been over a portion of it but not all.We were not buying it in bulk and therefore did not have it cruised.Neither of us knew how much timber of the dimensions we agreed on we would be able to cut, but Mr. Paulk said that for reasons personal to himself which he stated, that he wanted the lease to recite a consideration of $35,000.I told him that would be all right with me if it would be all right to put it in the lease.There was never any suggestion by Mr. Paulk that he would sell nor any by me that we would buy $35,000 worth of timber.There was never at any time any suggestion that I ever heard of or knew about that we were buying anything except the right to cut all of the timber that we could of the dimensions stated within the period of our lease.'He further testified that he asked an attorney whether it would be all right for the lease to recite a consideration of $35,000, explaining why this amount was to be recited, and the attorney advised that it did not make any difference what amount of consideration was recited, whether thirty-five thousand or only one dollar.Some additional testimony was introduced by the plaintiffs.

Glynn Lumber Company introduced witnesses, who testified that the timber was being wastefully cut and handled by McCann Lumber Company; that the understanding of the parties to the lease at the time of its execution was that it would expire when $35,000 worth of timber was cut, and this amount of timber had been cut before the institution of this suit.J. B. D. Paulk, the original lessor, testified by affidavit in part as follows:

'After said contract of July 28, 1941, was entered into and McCann had his equipment and crews cutting and removing said timber as outlined in said contract, unusual rains occurred, and it was impossible for McCann to operate profitably all the time in cutting and removing said timber as outlined in said contract, as all of said timber was in the Buffalo Swamp.It was then that McCann came to deponent and stated these facts and wished to cut timber on the outside of the Buffalo Swamp.Deponent needed $35,000 at that time, to be paid as stated in the contract of March 1, 1943, as he was not getting his money out of the contract of July 28, 1941, and he agreed with McCann to sell him $35,000 worth of timber, and also to give McCann an opportunity to keep his crews and enquipment working from time to time when they could not work in the Buffalo Swamp.The contract of March 1, 1943, was entered into for the sale of $35,000 worth of timber.Deponent never heard that McCann ever considered that he had purchased more than $35,000 worth of timber until after he had sold the property upon which the timber was located to the Glynn Lumber Company.'

Additional evidence...