Respondent's Petition for Rehearing
Before Latourette*, Chief Justice, and Warner**, Lusk, Brand and Tooze, Justices. LATOURETTE, J.Defendant Heppner Lumber Company, a corporation, has filed a petition for rehearing with accompanying brief. Our attention is called to the fact that *57we erred in concluding that the pine reserved in the conveyance was limited to merchantable pine instead of “all” pine as unequivocably stated in the deeds. This is true. However, this does not make any difference in the result reached as we are still firmly of the conviction that a reasonable time had elapsed for the removal of both pine and fir timber.
We are charged with error in “holding that the words ‘all pine and merchantable fir’ in 1939 meant only that pine and fir which could be logged on a profitable basis.” We did not so hold. Because we relied somewhat on the testimony of witness Hoffman who testified on cross-examination that the timber not removed was not merchantable for the reason that it was unprofitable for defendant to remove it, defendant asserts that we adopted his definition of merchantable timber. He did testify however, as pointed out in our opinion, that all timber that had a commercial value in 1939 had been removed. In Monger v. Dimmick, 187 Or 253, 210 P2d 929, cited by defendant in his brief on petition for rehearing, we said that merchantable timber is “all timber * * * that had * * * a commercial value in that locality * * *."
As pointed out in Dahl v. Crain, 193 Or 207, 237 P2d 939, it is difficult to define merchantable timber which will fit all occasions in all localities. It has no definite fixed meaning and many factors must be considered in a given case in determining what is or is not merchantable.
It is next asserted that the ‘ ‘ court erred in abandoning its long established equity rule that findings of the trial judge upon conflicting evidence will not be disturbed.” We know of no such rule. However, we have often said that where there is a conflict in testimony we should give great weight to the findings of the trial *58judge since he saw and heard the witnesses. We have a duty to perform by trying an equity case de novo.
It will be remembered that defendant was paying taxes on the timber and in order to remove its obligation the affidavits were executed. Because the officers and directors of the defendant company testified that they were misled when they signed the affidavits does not necessarily establish that fact. The record itself, in our opinion, belies their testimony. Four affidavits were filed with the assessor by P. W. Ma-honey, attorney for and an original incorporator of the defendant company. He was its director and became its secretary in 1942. As to the foundation for his affidavits, we have his testimony:
“Q What you know about whether the timber came off or not is from reports to you by employees, is that right? A By employees and independent gypo contractors.”
Orville Smith, vice-president and general manager of the company, executed one affidavit. He testified that he had done logging himself and that he was through this property any number of times between 1939 and 1951. The other affidavit was made by Allen L. Piper, forester of the company, who executed his affidavit after the defendant admittedly had examined the property.
To give credence to their testimony we would have to find defendant’s employees and contractors guilty of fraud and deceit. In addition there would have been another fraud perpetrated on the county in depriving it of its taxes. We are inclined to believe that the testimony of these officers was prompted by a desire to profit because of the skyrocketing of timber prices some four years after it ceased operations. Their memories were obviously faulty.
*59It is next argued that on the authority of Monger v. Dimmick, supra, defendant was not limited to the timber that was merchantable in 1939. In that case we quoted from Adams v. Hazen, 123 Va 304, 96 SE 741. It has never been the law in Oregon that merchantable timber is that timber which has commercial value “during the life of the contract.” This clause was inadvertently included in the Monger quotation. Tenny v. Mulvaney, 9 Or 405; Parsons v. Boggie, 139 Or 469, 11 P2d 280; Rayburn et ux. v. Crawford et ux., 187 Or 386, 211 P2d 483.
It is lastly urged that two forty-acre tracts were not logged during the eight years of operations. The testimony discloses that some of the timber which was unremoved was inaccessible on account of being in deep ravines or on high peaks. Whether or not the timber on the two tracts in question was included in the inaccessible timber is not disclosed by the evidence so, considering the evidence in its entirety, it must be assumed that that timber was likewise inaccessible.
Petition denied.
Warner, C.J., and Tooze, J., dissent.