This is an action by the appellants against the appellees, the basis of which is the contract copied in the statement of the case by the reporter. A number of questions are raised on the pleading and on the sustaining of objections to evidence.
The plaintiffs base their claim on the contention that the contract of sale of the timber was at so much per thousand feet of timber, and, as there was not enough timber on the land to make the amount of $500, which was paid, the plaintiffs are entitled to recover the difference. An inspection of the contract (made “Exhibit A” to the complaint) shows-that “in consideration of $500” cash, “in hand paid, the receipt whereof” is acknowledged, the defendants sold to the plaintiffs “all the' white oak and poplar and the best red oak that is suitable to make sound and good timber, all that will square 10 inches at the little end,” and then states: “And each tree to be counted in size as above at 50 cents.” After describing the plaintiffs’ rights of ingress and egress, etc., the contract states that, “in the event there is not enough timber on the above-described lands that will square 10 inches at the little end, oak and poplar as described above, to the amount of $500 at 50 cents per each tree, then we agree to let J. M. Steverson cut such timber as he wishes off the above-described land, counting it in proportion to the other timber.”
No provision is made for the payment of anything,’ in case the entire timber on the land does not at such rate, amount to $500. While the defendants reserve the option to pay in cash, rather than have the small timber cut, yet they do not assume any obligation to do *565so. While the parties both evidently thought that there was at least $500 worth of timber on the land, yet there was no warranty to that effect, and no agreement to return any part of the money in case they should be mistaken in'the matter. The sale of the timber was simply for the $500, and the seller protected himself against the contingency of there being more 10-inch timber than would amount to that, yet the purchaser did not protect himself against a mistaken calculation in the other direction, except to the extent of reserving the right to cut the small timber.
- The contract furnishes no basis for a recovery by the plaintiffs, and, that being the case, the questioas of pleading and evidence are immaiurril, as, in any event, the defendants were entitled to the general affirmative charge,- which was given by the court. The judgment of the court is affirmed.
Affirmed.
Dowdell, C. J., and McClellan and Mayfield, JJ., concur.