The quantity of timber removed from the land within eighteen months from the date of the contract was to be determined, after the timber was cut, by log scale at the river bank. The timber remaining on the land at the expiration of the eighteen months' period was to be sold on a stumpage basis, the quantity to be determined by an estimate made by two estimators, one to be appointed by the seller and the other by the purchaser. In case these two estimators could not agree on the quantity of timber remaining, they (the two estimators) were to appoint a third "competent, disinterested party, mutually agreeable." It is stipulated in the contract that: "The agreement of two of the three aforementioned estimators shall be accepted as a basis of final settlement."
It is provided that the estimate of the remaining timber should be made within thirty days after the expiration of the eighteen months' period, and that the payment for the amount of timber remaining should be made in a lump sum within *Page 414 thirty days after the estimate was completed and submitted, the purchaser to have twelve months' additional time in which to remove "any timber standing and purchased on the stumpage basis as aforesaid." The purchaser was to take all merchantable timber suitable for sawmill purposes. The estimate of the quantity of timber was to be based upon the measurement of the logs at the small end.
The contract, as relates to the sale of the timber which might be removed within the eighteen months' period, is altogether different from that which relates to the timber which remained standing on the land at the end of that time, in that the quantity of the timber removed within the eighteen months was to be determined by log scale and the quantity remaining at the end of that time was to be determined by an estimate. Plaintiff, by the present suit, is seeking to enforce that part of the contract relating to the sale of the timber which remained.
It is perfectly clear to me that this case falls squarely within the holding in the case of Louis Werner Saw Mill Company v. O'Shee, 111 La. 817, 35 So. 919, where it was held that where a tract of land was agreed to be sold at a price regulated by the quantity of timber on the land at a fixed price for each thousand feet, and the quantity of the timber was to be determined by estimates, the price was not definite or certain, as the Code requires, and that therefore the contract could not be enforced.
Justice Provosty, the organ of the court in that case, went at length and in great *Page 415 detail into the reasons why such a contract is not enforceable. In support of his conclusions he cited our own Civil Code, Code Napoleon, and French authorities. The same reasoning and the same law are applicable to the present case.
It must be borne in mind that the timber remaining on the land at the end of the eighteen months' period was to be paid for in a lump-sum within thirty days after the estimates were made. The lump-sum price to be paid for the timber in this case corresponds to the price of the land in the O'Shee Case. In the O'Shee Case it was held that neither party under a contract of this kind could be compelled to appoint an estimator. In the present case if the parties appointed the estimators, as provided in the contract, it is not probable that they would ever agree as to the quantity of the timber, especially in view of the fact that the estimates were to be based upon the size of the logs at the small end. At best an "estimate" of timber is but a guess. It is conceivable that a practical timberman might go upon a tract of land, measure the trees and count them, and in that way reach an accurate and reliable conclusion as to the amount of timber on the land. But where the estimate is to be based upon the size of the logs at the small end, it would be wholly impractical, if not impossible, to reach anything like a definite conclusion.
Again, the estimate is to be based upon "merchantable" timber suitable for "sawmill purposes." This injects a new element into the basis for fixing the lump-sum price to be paid for the timber. In *Page 416 other words, it is left to the estimators to say whether a tree or log is merchantable or suitable for sawmill purposes.
Under the holding in the O'Shee Case I think this contract is not enforceable, and that the exception of no cause of action was properly sustained, and I therefore dissent from the majority holding.