Paalzow v. North Carolina Estate Co.

The contract is not very carefully drawn, but, upon consideration of the whole contract, we are of opinion that the agreement was for the sale of 125 trees, of dimensions named, at the price of $2,500. While it is clear that it was the opinion of the parties that such number would •embrace “all the black walnut trees” of that dimension growing on the land, yet those words are not to be construed by themselves. Being general words, they are limited by the evident agreement of the parties that the number of *441the trees sold did not exceed 125. The second paragraph of the contract recites that, “ on the understanding that $2,500 represents the value of the 125 black walnut trees aforesaid,” &c. The contract further provides for an abatement at that rate ($20 per tree) should the number of trees fall under the stipulated 125. Twice in the same contract reference is made to the fact that the contract is “ on the basis of 125 trees,” of the dimensions named. There is no provision, it is true, for the payment for trees in excess of that number. It was open to the defendant whenever he got his 125 trees to stop, and if he chose not to do so, but to cut more trees than he had bought, he is liable for their fair value. '

The complaint alleges that the defendant “ unlawfully •converted said sixty trees in excess of the number sold him to his own use, and by said unlawful and willful removal,” and trespass, &c., plaintiff has beeñ damaged. We see no force, therefore, in the second ground of demurrer.

As to the third ground of the demurrer, this is not an action for the value of the 125 trees sold, and for which plaintiff contracted to convey the legal tide, but for the alleged unlawful conversion of sixty trees in excess of the contract number.

The Court'below rightly overruled the. demurrer, and •defendant has leave to set up his defence to the merits by •answer.

No error.