Opinion
31484.
DECIDED MARCH 6, 1947. REHEARING DENIED MARCH 20, 1947.
Complaint; from Crisp Superior Court — Judge Gower. October 8, 1946. (Application to Supreme Court for certiorari.)
George P. Wright, J. W. Dennard, John H. Dorsey, for plaintiff in error.
H. G. Rawls, contra.
The expression in a timber lease, "timber suitable for turpentine purposes," is ambiguous and is subject to explanation by proof of what the parties understood the term to mean at the time of the execution of the lease.
DECIDED MARCH 6, 1947. REHEARING DENIED MARCH 20, 1947.
Mrs. Lydia Clements brought an action against J. H. Dorsey to recover damages, for the diminution in the value of certain of her lands and the timber growing thereon, resulting from a breach of a "turpentine lease." She alleged that on September 11, 1941, she entered into a turpentine-lease contract with the defendant, granting him the right to use for turpentine purposes the timber on a certain tract of land of which she was the owner in fee simple. She alleged that she had a definite and positive agreement with the defendant that the term embodied in the written contract, to wit, "timber suitable for turpentine purposes," should be construed to mean and to include only such trees as were on the date of the contract ten inches in diameter at a height of fifty-four inches from the ground; that during the negotiations had with the defendant's agent, the plaintiff was informed and she believed, upon the basis of the representations of the defendant's agent, that there were approximately five thousand trees on her tract of land which would fall within the classification as being suitable for turpentine purposes, and that she was, therefore, paid $1000, or twenty cents per tree, by the defendant; notwithstanding this agreement and in disregard of the terms of the contract conveying to the defendant the right to use only trees ten inches in diameter, which damaged the plaintiff in a named sum. The defendant filed general and special demurrers, but before any ruling was made thereon she amended her petition which amendment was ordered filed subject to demurrer. According to this amendment, the plaintiff was a woman of seventy-one years and as a result of a heart attack was almost continuously confined to her home, unable to attend to her business affairs, and was unaware until November 1, 1942, that the defendant had utilized any of her trees not embodied within the terms of the lease. The lease, describing the tract of land involved, was attached to the petition. The only reference in the terms of this lease as to what trees were leased to the defendant is the phrase, "all and singular, the timber suitable for turpentine purposes," and that the defendant "is to have free use and enjoyment of the timber for the purpose aforesaid in said lot of land for and during the term of six (6) years from the date of January 1, 1942." The defendant filed a general demurrer to the petition as amended. The court overruled the demurrer and the defendant excepted.
The only question in this case is whether the expression in the lease, "timber suitable for turpentine purposes," is ambiguous. If it is not, parol evidence is not admissible to vary or contradict the terms of the lease. If it is ambiguous, it may be explained by parol on the theory set forth in the petition. Code, §§ 20-704 (1), 20-703, 38-502; Swanson v. Mobley, 33 Ga. App. 791 ( 127 S.E. 806); Wheelwright Co. v. Aiken, 92 Ga. 394 ( 17 S.E. 610); Ford v. Lawson, 133 Ga. 238 ( 65 S.E. 444). It would seem that, if the word "timber" is not a word of invariable meaning ( Pennington v. Avera, 124 Ga. 147, 52 S.E. 324; Reynolds v. Wingate, 164 Ga. 317, 138 S.E. 666; Neal Lumber c. Co. v. O'Neal, 175 Ga. 883, 166 S.E. 647; Vandiver v. Byrd-Matthews Lumber Co., 146 Ga. 113, 90 S.E. 960), in that it can not be ascertained from reading the expression exactly or approximately what size trees are included, the expression, "timber suitable for turpentine purposes," is likewise not an expression of invariable meaning, for the reason that it does not on its face or in connection with facts of which the court can take judicial notice show the minimum size of a pine tree which is suitable for turpentine purposes. We, therefore, hold that the expression is ambiguous and subject to explanation by parol. Such an explanation may be based on the construction placed upon the expression at the time of the execution of the lease. Code, § 20-703; Armistead v. McGuire, 46 Ga. 232; Holloway v. Brown, 171 Ga. 481 ( 155 S.E. 917); Atlanta Chemical Co. v. Hardin Bag Co., 49 Ga. App. 748 ( 176 S.E. 772); Hartwell Grocery Co. v. Mountain City Mill Co., 8 Ga. App. 727 ( 70 S.E. 48); Walnut Creek Milling Co. v. Smith Brothers Co., 178 Ga. 341 ( 173 S.E. 95). The case of Carter v. Williamson Co., 106 Ga. 280 ( 31 S.E. 651), relied on by the defendant in error, is distinguishable. It was there stated that a lease of "all of the round timber, or timber suitable for turpentine purposes," on designated lots of land, each described as containing a specified number of acres, was not ambiguous. The question involved there, as in Cherry Lake Co. v. Lanier Armstrong Co., 10 Ga. App. 341 ( 73 S.E. 610) was the identity of the land and not the dimensions of the timber, and all that the courts meant to say was that the descriptions of the lands were not ambiguous. It follows that the court did not err in overruling the general demurrer.
There being a dissent, the case was passed on by the court as a whole under the provisions of the act of 1945 (Ga. L. 1945, 232).
Judgment affirmed. Broyles, C. J., Sutton, P. J., MacIntyre, and Gardner, JJ., concur. Parker, J., dissents.
The words in the lease, "timber suitable for turpentine purposes," are not ambiguous in my opinion, and the expression means all the timber suitable at the date of the instrument for the purposes indicated. See Carter Elliott v. Williamson Co., 106 Ga. 280 (supra); McRae v. Stillwell, 111 Ga. 65 ( 36 S.E. 604, 55 L.R.A. 513); Martin v. Peddy, 120 Ga. 1079 ( 48 S.E. 420); Allison v. Wall, 121 Ga. 822 (6) ( 49 S.E. 831); McRae v. Smith, 164 Ga. 23 (4) ( 137 S.E. 390). "Turpentine timber" has not only a provincial but also a general meaning. Ellis v. State, 67 Ga. App. 821, 828 ( 21 S.E.2d 316). Even though it may be necessary to prove by parol testimony the usual size of timber suitable for turpentine purposes, this may be done without varying the terms of the writing, as the parties will be understood to have contracted with reference to the usual and customary rule in that particular. "But an attempt to limit the use of the property conveyed by parol proof involves an entirely distinct proposition," as was said by the Supreme Court in Shaw v. Fender, 138 Ga. 48, 52 ( 74 S.E. 792). It seems to me that to permit a party to a timber lease conveying the timber suitable for turpentine purposes to engraft upon the written contract by parol particular dimensions or specifications of timber that may be utilized is clearly adding to and varying a written contract, as prohibited by the Code, § 20-704. For these reasons the court should have sustained the demurrer to the petition.