portionately. The said estimator shall be some competent and disinterested person agreed upon by both parties hereto, and, in the event they cannot agree, then they shall each select one person, and the two thus selected shall choose a third, and the three so chosen shall name some competent and disinterested estimator, who shall make the estimate hereinabove provided for. There are 4,386.64 acres of said land, which, at $9 per acre, amount to $39,479.76, and when that amount shall have been paid to said Hunter, Benn & Co.'s Company by said J. M. Ackley & Co., the stumpage for all timber thereby sold shall be deemed to be fully paid for, and all further payment on that account shall cease. Any balance of said sum of $39.479.76 which may remain unpaid on the 1st day of April, 1903, shall become due and payable at once. "(3) In consideration of it so selling said stumpage, the said Hunter, Benn & Co.'s Company is hereby given the option for 60 days from this date of making a contract with the said J. M. Ackley & Co., by the terms of which the said J. M. Ackley & Co. shall bind themselves to sell to the said Hunter, Benn & Co.'s Company, and the said Hunter, Benn & Co.'s Company shall bind itself to buy from the said J. M. Ackley & Co., all of the sawn timber classing B and better which may be manufactured from the logs cut from lands under this contract prior to April 1, 1903, at the market price of such timber at Mobile, Ala., at the time said option is exercised, but not exceeding 14% cents per cubic foot on a basis of 30 cubic feet average. The said contract shall also embrace any hewn timber that may be cut from said land, and the price thereof is to be 15 cents per cubic foot upon the basis of 100 cubic feet average and B1 good. It shall further provide that payment for all said timber should be in cash on delivery of specifications, and that the said timber shall be inspected at seller's expense by W. J. Thornton, of Mobile, Ala., whose inspection shall be final. Should the said Hunter-Benn Company, elect to exercise this option before the expiration of 60 days from this date, the parties hereto cannot agree as to what is the then price of timber in Mobile [Here -follows the agreement for selection of arbitrators to determine]. (4) Is the retention of the statutory lien for stumpage upon each lot or raft of timber manufactured from the logs cut from said land. (5) Constitutes the agreement as to the amount to be cut and the time and the conditions under which it shall revert. (6) Has reference to the extension of the contract in the event Hunter, Benn & Co. should take the option to make the contract referred to in paragraph 3. (7) Has reference to certain disputed title to the land and agreement in reference there (8) Warranty by Hunter, Benn & Co. as to the ownership of the land. "(9) In the event of a purchase by Hunter, Benn & Co.'s Company of any of the timber manufactured from the logs cut from said lands, it is agreed that the timber be so purchased at the mill of C. L. Sowell & Co., at Magazine, Ala., or some equally good mill in the vicinity of Mobile, Ala., and that it shall be delivered to the said Hunter, Benn & Co. in Chickasabogue, in Mobile county, Alabama, in all respects as deliveries are now made by the said J. M. Ackley & Co. to W. H. Greenwood & Co. under the contract now existing between them. The Greenwood agreement was between Greenwood & Co. and Ackley & Co., by which Greenwood & Company took from Ackley & Co. their entire cut of logs brought down from their timbered lands and camp now established and in operation in Choctaw county, Alabama, to class B and better, not less than one-third A, and to average not less than 30 cubic feet per stick, price to be 141⁄2 cents per cubic foot on the basis of 40 cubic feet average for class B and better, delivery to be made at buyer's boom as fast as water will permit and timber is gotten, and to be completed before the 1st day of September, 1900, timber to be inspected and measured on all four sides by buyer's inspector, and classified according to the classification of timbers, etc., now current at the port of Mobile, seller paying the usual inspection fees; payment, cash in exchange for specification. It is further understood that seller shall not deliver or sell any timber to other parties until this contract is completed [with the noted exception]. It is also agreed that the lumber cut from these logs in the manufacture of timber is to be included in this contract, particulars as follows: [Here follow certain lumber measurements and prices.] It is further agreed that all lumber and deals shall be delivered alongside of vessel at seller's expense; also that each and every. raft is taken on its own average, and there shall not be two averages worked on any one raft, and that no raft shall contain less than 300 pieces, said average, if any, to be made up at their mill boom. Should sellers wish it, buyers are to advance 80 per cent. on the prime and heart face cut when it is properly manufactured and cut." L. & H. T. Smith and N. R. Clarke, for ap Stevens & Lyons, for appellant. Gregory pellee. SIMPSON, J. The bill in this case was filed by the appellee (a corporation), against the appellant, praying for discovery, a reference, and statement of accounts, and an injunction. On February 7, 1902, appellant and appellee entered into a contract, the material parts of which will be set out in the statement of the case. Said Hunter, Benn & Co. sold certain timber to said J. M. Ackley & Co.; and in the contract of sale it is It is also provided in writing, at the close of the printed matter, in the Greenwood contract, "that each and every raft is taken on its own average, and there shall not be two averages worked on any one raft, and that no raft shall contain less than 300 pieces, said average, if any, to be made at their mill boom." said stumpage the said Hunter, Benn & Co. | as water will permit, and timber is gotten." is hereby given the option for sixty days to make a contract with said J. M. Ackley & Co.," by the terms of which said J. M. Ackley & Co. were to sell to said Hunter, Benn & Co. all of the sawn timber of certain quality manufactured from the logs cut on said land. Said Hunter, Benn & Co. elected to take said option, within the time fixed, and, after several deliveries had been made and paid for, difference of opinion arose as to how the timber was to be "averaged," and, on the refusal of said Hunter, Benn & Co. to pay for two rafts delivered according to the specifications of J. M. Ackley & Co., the attorney of the latter gave a written notice canceling the contract. So this brings up the construction of the contract, and the question as to whether said party had a right to cancel the same. In explanation of the use of the word "average," it seems that it makes a considerable difference as to the amount of money to be paid for the timber, according as the average is made on each raft, or each delivery of several rafts, or on the whole amount finally delivered. Thus the timber might be so manipulated that a raft would contain something less than the prescribed quantity, yet, under the saving clause of the contract, if the average was made on that raft alone, The contract is entire, and the option to the payment would be as of the prescribed purchase the sawed timber is stated to be in quantity; whereas, if said raft was taken in consideration of the selling of the standing with one or more other rafts, and the avertimber. When that option was taken, the age made on all together, the seller would provisions with regard to the purchase of not get the benefit of these fractions, and the sawed timber became a part of the con- the result would be that he would receive tract, as fully as if they had been embodied much less than he would, on the single avertherein without any proviso as to the op-age plan. And in other ways the rafts may tion. That being the case, neither party be so manipulated as to increase the paycould cancel a part of the contract, without ment to the seller. canceling it entirely. in regard to delivery "as fast as water will permit and timber is gotten," but was holding back the timber, when gotten out, for the purpose of manipulating it, so as to get the advantage by having an average made on each raft. Consequently, when two rafts were delivered at the same time, said Hunter, Benn & Co. (appellees) insisted on making the It is claimed by the appellee that appelThe contract described the standing tim-lant was not complying with the agreement ber sold, as "all of the pine trees standing upon said lands which are of such size that, when all of them shall have been manufactured into sawn timber, the average of the entire lot shall be not less than 30 cubic feet per stick. It is understood between the parties hereto that it is not practicable to log any lands so that the timber manufactured from such logs shall average an exact num-average on both together, and not on each ber of feet per stick, and it is agreed that, in raft separately, and also insisted that, on a this case, such reasonable variations from a final settlement, all of the deliveries should 30-foot average as may result from this be added together and a general average cause shall not be deemed a violation of this made, which would adjust all inequalities in contract, or entitle either party to claim any- the separate deliveries. Said J. M. Ackley thing from the other on account of such va- & Co. (appellants) refused to accept said riation." average, and thereupon its attorney addressThe manufactured timber to be sold backed the letter to Hunter, Benn & Co., cancelto said Hunter, Benn & Co. is the sawed timber and hewed timber, of certain dimensions, at certain prices "per cubic foot on a basis of 40 cubic feet average," for the sawed timber, and 100 cubic feet average as to the hewed timber; and it is provided that "payment for all said timber shall be in cash on delivery of specifications, and that the said timber shall be inspected at seller's expense by W. J. Thornton, of Mobile, Ala., whose inspection shall be final." It is provided that the timber shall be delivered at a certain place "in all respects as deliveries are now made by the said J. M. Ackley & Co. to W. H. Greenwood & Co., under the contract now existing between them." The Greenwood contract provides: "De ing the said contract "for the sale and delivery of timber," "on account of your (their) noncompliance with its terms." While the expressions in the contract are not as clear as they might be, yet we hold that its meaning is that the reference to the Greenwood contract points, not merely to the clause requiring rapid delivery, but also to the written clause which prescribes the number of pieces which shall be in a raft, and that carries with it the remainder of the paragraph prescribing how the average shall be made. All of these matters pertain to the manner in which the lumber shall be delivered and received. The expression in the contract, that deliveries are to be made "in all things" as in the Greenwood contract, sions of the written clause relating to delivery, as well as the first clause about rapid delivery, which could have been expressed in a few words, without reference to the Greenwood contract. The evident intention of the clause prescribing the number of logs to be in a raft was to prevent the manipulation of rafts so as to increase the price, by means of the average, and the provision that "each and every raft is taken on its own average, and there shall not be two averages worked on any one raft," shows that the raft was to be the basis of averaging. It may be that it was thought that each delivery would be in one raft; but it is not so stated, and the language of the contract does not admit of any other interpretation than that each raft was to be averaged to itself. All contracts are presumed to intend good faith on the part of the contractors, and the evident purpose of the provision requiring deliveries as fast as water will permit and timber is gotten is that, as soon as the timber can be gotten out, and assembled in such quantities as are usually shipped together, the same shall be delivered. Of course, the party selling the timber must be allowed some discretion, in consulting his own convenience as to the quantities to be shipped at one time; but any manipulation of the deliveries for the purpose of working a fraud on the other party will be rebuked by the court. The provision with regard to reasonable variations from the 30-foot average was intended merely, as it states, to provide against the impracticability of so logging the land that each log shall contain the exact number of feet, and it is intended to protect the party only from "such reasonable variations * as may result from this cause." It contemplates good faith in the attempt to bring out such average, and is not intended to authorize the seller to manipulate the deliveries, so as to work out an increase in the price to be paid for the timber. The reference to the deliveries made under the Greenwood contract must refer to the manner of delivery provided by that contract, and not to any delivery which the parties to that contract may have sanctioned, other than as provided in the contract. In addition to what has been said as to the right of rescission of the contract in this case, it may be said that it is not every disagreement, as to the terms of a contract, which authorizes one of the parties thereto to declare the contract annulled. "The renunciation must cover the entire performance to which the contract binds the promisor." 9 Cyc..636. It must be "distinct and unequivocal." Id. p. 637; Smoot's Case, 15 Wall. 37, 47-48, 21 L. Ed. 107. The letter from the complainant, on which the respondent undertook to rescind the con the fact of Mr. Hunter's interpretation of the contract as to averages, asks that respondent note this for future invoices, and states, "We can square up in our next payment the difference in deliveries already made." The postscript merely points out that it is a question of invoicing, rehearses the terms of the contract, and says, "You have therefore to deliver to us all the sawn timber, cut, and we are ready and willing to pay for it, in accordance with the contract." In addition to this, it is shown that afterward the money was tendered to the respondent, in accordance with its demands, reserving the matter of the construction of the contract to be determined in the future. For these reasons, as well as upon the grounds before stated, the respondent had no right to rescind the contract or any part of it. We do not think that the so-called refusal of the complainant comes up to the conditions laid down by the authorities referred to in the brief of appellant, to wit, Hieronymus Bros. v. Bienville Water Sup. Co., 131 Ala. 447, 454, 31 South. 31; Worthington & Co. v. Gwin, 119 Ala. 44, 53, 54, 24 South. 739, 43 L. R. A. 382; 9 Cyc. 649. This court has laid down the principle that, where one party desires to rescind a contract, and the other party has not repudiated it, it is his duty to notify the opposite party and to give him a reasonable time within which to comply with the terms of the contract. Elliott v. Howison, 146 Ala. 570, 587, 40 South. 1018. So that, even if the action of the complainant justified the rescission (which it did not), the respondent's claim that the contract was rescinded and could not be revived by the subsequent offer accordance with the demands of the respondof the complainant to pay for the timber in ent is untenable. Nor can it be said that said subsequent offer showed a determination difference of opinion as to the construction to abandon the contract. It merely left the of the contract to be determined in the fu ture. In the original contract between the parties it is provided that "payment of all said timber shall be, in cash, on the delivery of specifications, and that the said timber shall be inspected, at seller's expense, by W. J. Thornton, of Mobile, Ala., whose inspection shall be final." The evident purpose of providing for this inspection was to ascertain, before the timber was accepted, its grade, and whether it was in accordance with the contract; and the intention is as clear that, when the timber was inspected and received, that transaction was closed. The inspection was final and conclusive on both parties, and neither party could afterward claim that it was not properly inspected and received, or that there should be a reaverage of the entire amount received, and a readjustment of ac counts on said new average. Of course, all contracts can be opened up by either party, in the delivery of the timber, | tract," and the chancellor granted the mothat could be inquired into; but that would tion and reduced the item to $2,629.49. The not cover an error in the average, where only evidence which the register had before both parties had the timber and all the facts him was the agreement of the parties, and before them and agreed on the average and there is nothing said in said agreement about inspection then made. timber being held back in violation of the terms of the contract. Consequently, the chancellor erred in reducing this item. It results that the question as to whether the complainants were within their contract rights, in refusing to pay for the two rafts offered on December 13, 1902, depends upon the further question whether the timber had been held back contrary to the provisions of the contract, and the rafts manipulated contrary to the spirit and intent of the contract. But, however that may be, as before stated, the respondents were not authorized to cancel the contract, and having attempted to do so, and proceeding to sell the timber contrary to its provisions, they are liable for damages; and the measure of damages is correctly stated by the chancellor, to wit, the difference between the contract price, and the price at which said rafts were sold. At least, the sellers cannot complain. The respondent was allowed the abatement claimed by it, on account of the failure of title of part of the lands, and, as the general statement of the accounts shows that the respondent is indebted to the complainant, the respondent recovers nothing on his cross-bill. The decree of the chancellor will be corrected, by substituting $2,821.49 in place of $2,629.49 and omitting the $97.57 interest, as above indicated, leaving the amount due March 4, 1909, $17,286.33, as found by the register; and, as so corrected, the decree of the chancery court is affirmed. Corrected and affirmed. DOWDELL, C. J., and MCCLELLAN and MAYFIELD, JJ., concur. GRAIN CO. (166 Ala. 274) The chancellor's decree adopts the same construction of the contract which we have given. It provides that each raft be taken at its own average, and as to the timber cut, CASSELS' MILLS et al. v. STRATER BROS. but not delivered, in place of taking the general average of the whole, he adopted the only feasible way of making the average, according to the contract, to wit, making the average on each 300 sticks as fast as they were cut, and could have been delivered. Respondent's objections to the register's report are based on the claim that they had a right to rescind the contract, and are not liable in damages for the results of their attempting to do so, and on the claim that, as to the rafts delivered December 22, 1902, and not paid for, the register found the amount due, in accordance with the chancellor's directions; but the chancellor changed that item and made the estimate contrary to the directions of the decree. The direction in the decree is that said Ackley & Co. were to be credited with the contract price of the rafts delivered and not paid, "Each raft to be taken on its own average, and no raft to contain less than 300 pieces." The agreement between the parties shows that the delivery of December 22, 1902, "On the basis of a separate average for each of said rafts amounted to $2,821.49," while the price "calculated on the basis of one average for both of the rafts combined was $2,629.08." The register reported the value of these rafts, in accordance with the decree and the agreement, at $2,821.49. The complainant moved the court to reduce this item, "because it appears from the evidence submitted at the reference that the said valuation of said rafts was based upon the making up of separate averages by means of holding back timber in violation of the terms of the con (Supreme Court of Alabama. Dec. 16, 1909. trial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2404, 2405; Dec. Dig. § 537.*] RECORD 2. APPEAL AND ERROR (§ 713*)_ Rulings upon demurrers to the pleadings must be shown by the record proper, and not by bill of exceptions. Error, Cent. Dig. § 2957; Dec. Dig. § 713.*] An objection to suing defendants as copartners when they were individuals or members of a corporation, or vice versa, should be raised by plea rather than by demurrer to the complaint. [Ed. Note.-For other cases, see Parties, Cent. Dig. §§ 156, 157; Dec. Dig. § 94.*] 4. PLEADING (§ 67*)-COMPLAINT-ANTICIPATING DEFENSE. of action, and need not allege defensive matter, The complaint need only state a good cause and, in an action for breach of contract to purchase wheat, that plaintiff could have sold If the complaint states a cause of action, questions as to the elements or amount of damages recoverable cannot be raised by demurrer to the complaint, but must be raised by motion to strike, objections to the evidence, or by instructions. [Ed. Note.-For other cases, see Pleading, Cent. Dig. $$ 439, 1092-1095, 1433-1436; Dec. Dig. §§ 193, 354, 428.*] 6. DAMAGES (§ 141*) - PLEADING - ALLEGATION-SUFFICIENCY. In an action for breach of contract to purchase and receive wheat, allegations of the complaint that defendant refused to take and pay for the wheat and notified plaintiff not to ship any more sufficiently showed how plaintiff was damaged by the breach. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 406, 407, 412; Dec. Dig. § 141.*] 7. SALES (§ 345*)-REMEDIES OF SELLER-ACTIONS FOR BREACH-TENDER-Necessity. Where the buyer refused to accept and pay for wheat purchased, and notified the seller not to ship any more, the seller need not tender the wheat in order to maintain an action for breach of the contract of purchase. [Ed. Note.-For other cases, see Sales, Cent. Dig. 959; Dec. Dig. § 345.*] a particular trade, and that the damages claimed would probably result from breach of his contract as to quality; profits from the resale of property or from the sale of products manufactured from the property purchased being too remote and speculative to be recovered unless contemplated by the parties as a result of the breach of the contract of sale. Dig. 88 1189, 1200; Dec. Dig. § 418.*] [Ed. Note.-For other cases, see Sales, Cent. 12. SALES ( 418*)-BREACH OF CONTRACTREMEDIES OF BUYER MEASURE OF DAM AGES. - The measure of damages for breach of a contract to purchase is the difference between the agreed price and the price for which similar property could be purchased in the market. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1174, 1175; Dec. Dig. § 418.*] 13. APPEAL AND ERROR (§ 302*)-RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW MOTION FOR NEW TRIAL-SUFFICIENCY. Where an assignment of error in admitting evidence in a motion for new trial was too general to be considered on appeal, and a part of the evidence was admissible or was not objected to, the Supreme Court will not search the record to determine what part was not admis sible. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1747; Dec. Dig. § 302.1 14. APPEAL AND ERROR (§ 1051*)-REVIEW— HARMLESS ERROR-ADMISSION OF EVIDENCE. Where defendants admitted that they re 8. EVIDENCE (§ 457*)-PAROL EVIDENCE-EX-ceived certain statements, they could not have PLAINING CONTRACT-AMBIGUITY. Contracts should be construed so as to speak the intention of the parties when executed, and, in case of doubt as to the meaning of words used therein or their application to the particular circumstances, such meaning may be shown by parol evidence, and any uncertainty in the words "subject to Louisville terms," in a contract by which plaintiff agreed to sell defendant a certain amount of wheat at a certain price subject to Louisville terms, shipment to be made as stated, could be explained by extrinsic evidence. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2104; Dec. Dig. § 457.*] 9. CONTRACTS (§ 333*)-ACTION-PLEADINGCOMPLAINT GROUNDS OF DEMURRER-UNCERTAINTY OF CONTRACT. The contract sued on may be set out as made, and it will not render the complaint demurrable because a term in the contract is ambiguous, if it can be explained by extrinsic evidence, and does not make the contract as a whole void for uncertainty, or if the contract was complete without it. [Ed. Note. For other cases, see Contracts, Cent. Dig. 8 1652; Dec. Dig. § 333.*] 10. CONTRACTS (§ 34*)-EXECUTION-SIGNING JOINT CONTRACTS. A contract could be executed by two persons as one party without both signing it. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 162-166; Dec. Dig. § 34.*] 11. SALES (§ 418*) - BREACH OF CONTRACT REMEDIES OF BUYER SPECULATIVE DAMAGES-PROFITS FROM RESALE. To entitle the purchaser of wheat to recover damages for loss of trade resulting from the sale of flour manufactured from it, because of its poor quality, such damages must have been reasonably in the contemplation of both parties when the wheat was sold, and the seller must have known, or had knowledge of facts charging him with notice, that the wheat was to be manufactured into flour to be sold for been prejudiced by testimony that witness mailed such statements to them. [Ed. Note.-For other cases, see Appeal and. Error, Cent. Dig. § 4164; Dec. Dig. § 1051.*] 15. TRIAL (§ 139*) — QUESTIONS FOR JURY — AFFIRMATIVE CHARGE. Where there was evidence to support a judgment for plaintiff, defendants' request for the general affirmative charge was properly rofused. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 332, 338; Dec. Dig. § 139.*] 16. TRIAL (§ 240*)-INSTRUCTIONS-ARGUMENTATIVE INSTRUCTIONS. In an action for damages for breach of a contract to purchase wheat, defendants requested a charge that the jury should find for defendant on his plea of recoupment, if they were reasonably satisfied that plaintiff failed to ship defendant certain wheat as agreed, and, by reason of its failure to do so, defendant was injured and the fact, if it was a fact, that plaintiff, through its agent, agreed to ship defendant cer tain wheat which it failed to do, and defendant, relying on such representation of such agent, gave an order for several cars of such wheat, of such damages. Held, that the charge was would not constitute it a waiver by defendant lated to mislead the jury. properly refused as argumentative and calcu [Ed. Note. For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 240.*] 17. TRIAL ( 191*)-INSTRUCTIONS-REQUESTS -ASSUMING FACTS. A requested charge which assumed material disputed facts was properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 420; Dec. Dig. 191.] 18. SALES (§ 60*)-CONSTRUCTION-CONSTRUCTION BY PARTIES. The fact that the seller, during the life of a contract for the purchase of wheat, "subject to Louisville terms," notified the buyer that the quoted phrase meant "Louisville weights and |