In this suit for injunction to restrain the defendants from interfering with the alleged right of the plaintiff's 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.
No. 15189. JULY 9, 1945. REHEARING DENIED JULY 23, 1945. The exception is to the refusal of the plaintiffs' prayer for an interlocutory injunction, and to the grant of an injunction against the plaintiff's 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. *Page 670
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. B. D. 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 copartnership 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. *Page 671
"7. The vendee has paid to the vendor contemporaneously herewith the sum of eight thousand ($8000) 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 ($5000) dollars until there is only approximately $5000 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 $5000; two thousand two hundred fifty ($2250) dollars of the said $8000 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 $5000 with the said vendor, the further cutting to be applied until same is exhausted, and to continue making said $5000 deposits until same are exhausted, and to be credited as above set out, until there remains only approximately $5000 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 *Page 672 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 *Page 673 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 equipment 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 along the same line was introduced.
The plaintiffs objected to various parts of several of the affidavits for the defendants, "on the ground that same varied the terms of the written contract." The judge held that the contract was ambiguous, admitted the evidence over the objection stated, and passed an order enjoining both the plaintiffs and the defendants and their respective agents from cutting any other or further timber from any of the lands covered by the contract, until further order of the court. The plaintiffs excepted. The defendants in error, defendants below, contend that the lease contract is ambiguous as to the quantity of timber that could be cut and removed under the right granted, basing this contention mainly upon the general recital of $35,000 as consideration, and insisting further, that, as explained by the testimony which they introduced, the agreement conveyed the right to cut only $35,000 worth of timber at the stated price of $12.50 per one thousand feet. From the pleadings and the evidence, and the briefs of counsel, the validity of these contentions appears to be the controlling question.
1. "The construction of a contract is a question of law for the court. Where any matter of fact is involved (as the proper *Page 674 reading of an obscurely written word), the jury should find the facts." 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." § 20-704 (1). "The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part." § 20-704 (4). "Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument." § 38-501. "Parol evidence shall be admissible to explain all ambiguities both latent and patent." § 38-502. The intention of the parties is determined from a consideration of the entire contract; and, if possible, all of its provisions should be so interpreted as to harmonize with each other. Simpson v.Brown, 162 Ga. 529 (134 S.E. 161, 47 A.L.R. 865);spooner v. Dykes, 174 Ga. 767 (2) (163 S.E. 889). The contract here appears upon its face to be complete, that is, to embody an entire agreement, and there is no question as to fraud, accident, or mistake. Code, § 38-504; Forsyth Manufacturing Co. v. Castlen, 112 Ga. 199 (6) (37 S.E. 485, 81 Am. St. R. 28);Brosseau v. Jacobs' Pharmacy Co., 147 Ga. 185 (2) (93 S.E. 293). Accordingly, under the foregoing rules, the question as to quantity must be determined by the court as a matter of interpretation, unless there is an ambiguity, latent or patent, such as would render parol evidence admissible in relation to that question.
While, as we have stated, the agreement must be finally considered in its entirety, let us first examine it without reference to the general recital as to consideration, after which we will consider it as a whole and in the light of such recital. Stripped of such recital, the lease contract would not contain the slightest hint that there was any intention to sell only $35,000 worth of timber at the stipulated price of $12.50 per thousand feet, as contended by the defendants, rather than all of the timber, regardless of quantity, at the stated price per thousand feet, subject only to *Page 675 the expiration of the lease on December 31, 1946, as contended by the plaintiffs. In this statement, we are looking, of course, at paragraph 2 of the contract, which, aside from the immediately preceding statement "that this lease applies only to timber on the west side of Buffalo Swamp," contains literally the first indication as to what, if anything, is being sold, or even as to the nature and purpose of the agreement. It contains the first and only granting clause, and the first and only complete description of the timber. Nor is there any later qualification of such description — unless we are to assume that some of the later provisions are inseparably linked with such general recital of consideration. In that paragraph, the vendor granted a license to cut and remove "the timber (either standing or on the ground) hereinafter described on said described lands," and then, in subparagraphs (a), (b), and (c), he fully described the timber as to kinds and dimensions. Necessarily, the timber meant all of the timber as thus described (41 Words Phrases, Perm. ed. 461); and note also the clause in subparagraph (c), "The vendee to utilize all merchantable timber herein described." Whether this clause refers only to the pine timber, described in this subparagraph, it is apparently inconsistent with the claimed limitation. The price is stated in paragraph 3 as $12.50 per one thousand feet.
We next consider paragraph 7. Excepting the guarantee as to the repair of roads and bridges, this paragraph refers only to the terms of payment of the previously stated price of so much per thousand, stating that deposits or partial payments shall be made from time to time in advance of cutting, "until there remains only approximately $5000 worth of timber left to be cut under the within lease as hereinabove provided for," the deposit for this last $5000 worth of timber having been made at the execution of the contract, being a part of the initial payment of $8000. By these provisions, the vendor was to be paid for all timber before it was cut, not as an entirety, but in quantities of $5000 worth at the stipulated price of $12.50 per one thousand feet.
From what has been said, we think it is perfectly clear that the plaintiff's were not limited to the cutting and removal of any particular quantity of timber, unless it should be otherwise because of the recital of $35,000 as consideration. We will now consider the contract as a whole — that is, with this clause included. *Page 676 In the light of the other provisions and the applicable rules of construction, it is apparent that the consideration as recited was no the consideration for the timber itself, but was the consideration or part of the consideration, mutual covenants also being mentioned, for the act of the vendor in agreeing to the subsequent provisions of the contract, whereby he granted to the other parties, called the vendees, a license to cut and remove the timber as described at so much per one thousand feet, subject to termination of the lease at the time therein stated. The consideration for the timber itself would be the $12.50 per one thousand feet agreed upon in paragraph 3, as to which the obligation and terms of payment would be governed by paragraphs 2 and 7. We are not here concerned with any question as to whether the vendees were actually obligated to cut and remove, that is to say, to purchase, any part of the timber described. Whether the agreement did grant a "license" only, or whether it went further and imposed an actual obligation to purchase, the parties could lawfully enter into an agreement of either character, and the grantor could at the same time exact a consideration for entering into it, entirely apart from the consideration for the timber itself, as cut and removed in accordance with the contract.Weed v. Lindsay, 88 Ga. 686 (15 S.E. 836, 20 L.R.A. 33);Andrews v. Stulb, 145 Ga. 826 (90 S.E. 59); Jordan v.Cook, 159 Ga. 6 (124 S.E. 686); Clark v. Bandy,198 Ga. 564 (2) (32 S.E.2d 245); and see especially, Simpson v. Sanders, 130 Ga. 265 (2) (60 S.E. 541); Luke v.Livingston, 9 Ga. App. 116 (70 S.E. 596).
While it may be true that in contracts regarding the sale or possible sale of property, we generally think of consideration as the amount paid or to be paid for the property itself, consideration may not always have that meaning, and under the terms of the present contract, as properly construed, we are satisfied that it was not so intended in this instance. In applying this interpretation, we accord a place to each and every part of the agreement and give full weight to each according to the apparent intention of the parties, judged by the language used, and considering the agreement as a whole.
Certain matters have already been mentioned as not being within the scope of the present inquiry. The liability of the plaintiffs, if any, under the general recital to which reference has been made, *Page 677 and whether on such an issue parol evidence would be admissible for the purpose of inquiring into the consideration, are additional questions which are not before us at this time. Accordingly, nothing contained in this opinion is intended as an expression or intimation thereon.
In view of what has been said, the contract was not ambiguous in the sense that parol evidence would be admissible for the purpose of explaining its meaning with reference to the quantity of timber that could be cut and removed under the right granted; nor was there any limitation as to quantity. Therefore the court erred in admitting the parol evidence to which objection was made, and in not granting an injunction as prayed by the plaintiffs; nor should the plaintiffs have been enjoined on the cross-prayer of the defendants.
2. While we might rest our conclusion upon what has been stated in the preceding division, we may say that we have not in that division construed the contract precisely as it has been presented to us by either side, and this being true, some additional observations will be made.
Even assuming that the recital mentioned might be taken as referring to the consideration for the timber itself, as insisted by the defendants, rather than for the act of the vendor in entering into the contract, as stated in the preceding division — and certainly this would be the only other interpretation that could be urged with any degree of plausibility — still, such general recital could not, in our opinion, be properly treated as limiting or qualifying the plain and specific terms of paragraph 2, whereby the plaintiffs were granted a license to cut and remove all the timber, regardless of quantity, at the stipulated price of $12.50 per one thousand feet, subject only to the expiration of the lease on December 31, 1946. On the contrary, the particular and explicit language would restrain and limit such general recital. "The general rule of construction applicable to all writings, constitutions, statutes, contracts, and charters, and even to ordinary conversations, is this: that general and unlimited terms are restrained and limited by particular recitals, when used in connection with them."Torrance v. McDougald, 12 Ga. 526 (2). See also Osteen v.Wynn, 131 Ga. 209 (2) (62 S.E. 37, 127 Am. St. R. 212);Rowland v. Mathews, 153 Ga. 849 (2) (113 S.E. 442), referring to the description *Page 678 of land; and O'Callaghan v. Bank of Eastman, 180 Ga. 812,817 (180 S.E. 847), referring to a pleading.
Furthermore, we do not have here a mere comparison of general language in a contract with that which is specific. What we do have is a mere recital of consideration, which is one of the weakest elements to be found in any written contract, to be weighed against the granting and descriptive clauses, which, to say the least, are of vital importance in any instrument. InHarris v. Hull, 70 Ga. 831, it was said that, "What is most material and most certain in a description shall prevail over that which is less material and less certain;" and we see no reason why the same rule of construction should not be applied in determining what is covered by the descriptive terms as to subject-matter in the instant timber lease.
As illustrating the inherent weakness of the recital in question, we need only recall a few elementary principles. The consideration of a deed or other contract may always be inquired into when the principles of justice require it. Code, § 29-101. Where the consideration is expressed merely by way of recital, it is permissible to show by parol evidence that the real consideration is in fact different from that expressed in the instrument. Cottle v. Tomlinson, 192 Ga. 704 (4) (16 S.E.2d 555). It has been held that, where a deed recites a money consideration, it may be shown to be a voluntary conveyance (Leggett v. Patterson, 114 Ga. 714 (2), 40 S.E. 736; King v. Mobley, 150 Ga. 256 (2), (103 S.E. 237); and, conversely, it has been held that, where a deed states love and affection as the consideration, a money or other valuable consideration may be shown. Thompson v. Cody, 100 Ga. 771 (3) (28 S.E. 669);Farrar Lumber Co. v. Brindle, 170 Ga. 37 (3) (151 S.E. 923). See also Stone v. Minter, 111 Ga. 45 (2) (36 S.E. 321, 50 L.R.A. 356). Nor does a recital of payment of the purchase-money in a deed or other contract estop the maker from denying the fact and proving the contrary. Code, §§ 29-110, 38-114. "To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject-matter upon which it can operate." § 20-107. We thus see that among the essentials of a contract a consideration is one thing, while a subject-matter is another and different thing. So, if, in this case, the has been clearly and specifically described, it could *Page 679 not properly be diminished or limited by a mere general recital of consideration in some other part of the agreement. Any such treatment would allow the otherwise clear and specific terms as to the quantum of the subject-matter to be varied under the guise of inquiring into the consideration, which is never permissible under the law. Coldwell Co. v. Cowart, 138 Ga. 233 (2), 236 (75 S.E. 425); Rheney v. Anderson, 22 Ga. App. 417, 419 (96 S.E. 217); Middlebrooks v. Dunlap-Huckabee Auto Co.,44 Ga. App. 543 (162 S.E. 153). We do not in this view ignore such a general recital as to the consideration, but we merely relegate it to its legally subordinate place in comparison with the other terms and conditions of the agreement. 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. Code, §§ 20-701, 20-702; 3 Words Phrases (Perm. ed.) 312.
We do not overlook the decision in Novelty Hat Mfg. Co. v.Wiseberg, 126 Ga. 800 (55 S.E. 923), defining ambiguity, and nothing which we have said conflicts with that decision. Nor is there any conflict with Shackelford v. Fitzgerald, 151 Ga. 35 (105 S.E. 597). In the latter decision, it was said: "The part of the lease written with pen and ink inserted in the blank form seems to have been intended to describe the thing leased. It contains a more specific description of the subject-matter of the contract than that contained in the other parts of the instrument which are in the printed form and which are general in their nature. The words containing the specific description should prevail, if the two can not be reconciled." This statement supports the conclusion that we have reached in the instant case as to the greater weight of the specific terms of the contract.
The phrase, "as hereinabove first provided for," in paragraph 2, *Page 680 can not reasonably be construed as referring to anything preceding that paragraph; for, as we have seen, that was the first paragraph which contained anything in the nature of a lease, and it was only in that paragraph that any specific description of timber was given. The recital of $35,000, though appearing before it in the contract, did not within itself indicate anything whatever as to the nature and purpose of the agreement. So, even if the recital might be taken as referring in some way to the consideration for the timber itself, as assumed in this division, we reach the same result as in the preceding division.
Judgment reversed. Bell, C. J., Duckworth, Atkinson, andWyatt, JJ., concur.
ATKINSON, J., concurs specially for the reasons stated in the first division of the opinion. [EDITORS' NOTE: THIS PAGE IS BLANK.] *Page 685