(After stating the foregoing facts.) The sole question for determination, as presented by the briefs of counsel, is the proper construction of the contract. The contract having provided for the sale of “all the timber” upon the land for “the sum of $2500.00 for said timber,” it would seem that unless there are other provisions in the contract to the contrary and demanding a different construction, the defendants are liable for the entire purchase price of $2500 irrespective of the amount of timber upon the land. The provision in the contract, that “the sum of $2.50 per thousand” is to be paid “until the balance of $2000.00 is paid, to be paid as the lumber is stacked and checked,” can not be construed as modifying the unequivocal provision above referred to which provides for the sale of “all the timber” for “the sum of $2500.00 for said timber,” and as therefore limiting the defendants’ liability to pay for only the timber actually upon the- land. The provision as to payments at the rate of $2.50 per thousand “as the lumber is stacked and checked” is not only not in conflict with the provision as to the sale of “all the timber” for “the sum of $2500.00 for said timber,” but expressly recognizes and reaffirms the defendants’ obligation to pay the entire stipulated purchase price of $2500, less the cash payment of $500.
Since the contract expressly provides for payment by the defendants for all timber which they may cut from the land in excess of 900,000 feet, it is clear that, although the contract contains no warranty as to the amount of timber on the land, it was, at the time of its execution, contemplated by the parties that the land contained at least 900,000 feet of timber, and that at least that amount of timber would be cut from the land and stacked and checked. The provision as to payment at the rate of $2.50 per thousand “until the balance of $2000.00 is paid, to be paid as the lumber is stacked *383and checked,” must, therefore, be construed with reference to the fact that the parties contemplated that 900,000 feet of timber would be cut from the land and stacked and checked. So construing this provision, it follows that the provision as to the payment of $3000 to be made at the rate of $3.50 per thousand as the lumber is stacked and checked, is to be construed as directory only and as a convenient method for the payment of the $2000, and not as a provision obligating the defendants to pay at the rate of $2.50 per thousand for only such lumber as is stacked and checked.
The contract, properly construed, unconditionally obligates the defendants to pay to the plaintiffs the sum of $2500 irrespective of the amount of timber upon the land, provided, however, that should the defendants cut from the land timber in excess of 900,000 feet, an additional sum shall be paid by them for such excess at the rate of $3.50 per thousand.
The trial court having instructed the jury that the defendants were liable to the plaintiffs only for the amount of timber actually upon the land, and it appearing that the actual amount of timber upon the land was considerably less than 900,000 feet, viz., about 400,000 feet, such instruction was error harmful to the plaintiffs, and necessarily affected the verdict rendered for the plaintiffs, which was only for the amount admitted by the defendants to be due for the timber actually cut from the land. It was, therefore, error to overrule the plaintiffs’ motion for a new trial.
Judgment reversed.
Jenkins, P. J., and Bell, J., concur.