(after stating the facts as above.) — The appellant sued as plaintiff in the court below for money due by account and for money liad and received. The case was tried on the plea of the general is>me interponed by the appellees, and resulted in the general charge being given by the trial court in favor of the appellees, the defendants below. The trial court’s action in giving the general charge in favor of the appellees, and in refusing a like charge in behalf of the appellant, plaintiff below, is assigned as error.
It is the appellant’s contention that the receipt given on or about the 28th day of November, 1907, should be taken and construed in connection with the deed conveying the timber executed May 1, 1907, and that when so taken and construed in connection with the deed the 1500 paid under the terms of the deed will be deemed to be merely an advance of that amount on account of certain timber to be cut at the rate of $1.50 per thousand. (The reporter will set out the deed dated May 1, 1907, and the receipt given November 28, 1907, in the statement of the facts of the case.)
The deed, or contract of sale, is an absolute conveyance of certain timber by the appellees for a consideration of $500, providing that all over $500 worth of a certain kind of timber designated in the contract, at the rate of $1.50 per thousand, which is cut by appellant, shall be paid for at the designated price as cut and shipped. The contract, or conveyance, contains no warranty that there is sufficient timber of the kind desig*371natecl, at the price stipulated per thousand, to amount to the price paid, to wit, $500; nor does it contain any stipulation for return of any part of the, purchase price paid as a cash consideration, if there is not sufficient timber of the kind designated to amount to the price paid at the stipulated price. But even .though the receipt, construed in connection with the conveyance, warranted such a construction as contended for by appellant, and the $500 paid as a cash consideration should be considered and held to be an advancement made by the appellant, it could not recover any part of it from the appellees, as due by account or for money had and received, if during the term or life of the contract there was a sufficient quantity of the designated timber on the land at $1.50 per thousand to amount to the sum of $500, the stipulated price. For aught that appears from the testimony, there may have been a sufficient amount of the timber at $1.50 per thousand to aggregate the total amount paid of $500, which appellant negligently failed or purposely refused to cut during the term of the contract- There was no proof whatever offered on the trial to show that there was not timber of the designated kind on the land sufficient to aggregate $500 at $1.50 per thousand. True, the appellant was to be the judge of the suitableness of the timber for the purpose for which it was purchased; but it was not shown but that there was such timber on the land during the period that the contract was in force which the appellant deemed suitable and purposely did not avail himself of the right of using.
The $500 was undisputably paid for certain timber on certain land, and if the timber was there in sufficient quantity at the agreed price to aggregate the amount paid, and was not cut or used by appellant through no fault of the appellees, then no part of the $500 paid by *372the appellant to the appelees could be recovered in this, suit. The appellant testified that “the staves and headings cut under said contract amounted to' $168.61”; but how much more timber was on the land suitable for cutting, even in the judgment and discretion of the appellant, for staves and headings, does not appear from the evidence. The bill of exceptions purports to set out all of the evidence; but, for anything that appears to the contrary, there may have been more than sufficient timber, at the agreed price, to amount to the purchase price of $500, and, if so, then, even if we -construe the deed and receipt together and consider the price paid as an advance at so much per thousand for the timber, as is the appellant’s contention, yet it would not be entitled to recover back from the defendants any part of the purchase price paid them, in the absence of all proof that there was not sufficient timber of the designated kind on the land to amount in the aggregate to $500 at $1.50 per thousand feet. ’
Viewing the evidence in the most favorable light to the. appelant, and giving the contract and receipt the construction contended for by it, the appellant would still be without right to recover, and the court committed no error in giving appellees the general charge. It follows that there was no error in refusing the general charge in behalf of the appellant, and the case will be affirmed.
Affirmed.