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Jenkins v. Lykes and Barco-Opinion of Court.

he had permission from Mr. Atkinson to do so. He testified also to facts derived from defendant's letters which were not produced, but this was ruled out by the court.

Jenkins (defendant) sworn and examined in behalf of plaintiffs testified that he had cut cedar on the land in question. Had cut 100 sticks in all since October 19, 1878, to 30th October, 1879. Had cut and removed 325 sticks averaging three and a half feet cubic measure to the stick, worth 45 cents per cubic foot. This does not include 60 sticks now in the water cut in 1879 before October. They will average two or two and a half feet to the stick. First knew that Lykes & Barco owned the land in May, 1879. Don't think any more was cut after that. The hands were moving the cedar from the land when he received this notice, and they had finished when I arrived there two or three days after this notice. Sold the 325 sticks at 45 cents per cubic foot after cutting, hewing and hauling out of the swamp to the place of shipping. Built a causeway at a cost of about $150 to make a road to get out the timber. Paid Mr. Dyas 15 cents per foot for getting out the timber and delivering it on the bank of the river by contract. Gave a note for the $100 and paid it before it was due to Mr. Atkinson. Understood when I bought the cedar the land belonged to the estate of Neil Ferguson, of whom Mr. Atkinson was son-in-law and agent, and after making the contract Atkinson bought the land “at a sale of the estate” of Ferguson.

The defendant then introduced the contract by which Atkinson sold him the cedar.

Plaintiffs then introduced Atkinson as a witness. He stated that defendant made him an affer for the cedar, and after consulting with the Ferguson heirs, and they approved of it, and then the contract was made.

The witness here stated, (objection was here made by de

Jenkins v. Lykes and Barco—Opinion of Court.

fendant's counsel to any statement by the witness tending to vary the meaning of the written contract and the court overruled the objection, to which ruling defendants' counsel excepted,) “I said here, Colonel Jenkins I will not assume the responsibility of selling him the cedar, unless it was cut by the time of sale of the land for the estate, which time was then spoken of between us. This was what was meant by the provision of a reasonable time made in the written instrument, and I think Mr. Jenkins mentioned about the January following. Mr. Jenkins agreed to this proposition or I would not have signed it, the papers, meaning the permit, which I gave to Mr. Jenkins, and the note which he gave me were executed then and there. This was July 11, 1877. The lands were sold for the benefit of the estate of Neil Ferguson in a few months. I think the last of the year 1877. I purchased these lands at the sale. I informed Mr. Jenkins at the time he paid me the note of the sale of those lands, and that I had bought them. To the best of my recollection the note was not to be paid until the cedar was cut. The note was paid about maturity.” Atkinson's wife was one of the heirs at law of the estate of Ferguson.

Some contradictory testimony was given by Atkinson and defendant relative to the understanding as to the time when the contract was to cease and defendant to stop cutting. Defendant stated that he wrote the contract and used the words "reasonable time” on account of high water, sickness, anything preventing, or misfortune. “All the timber on the land was cut in six or seven months immediately after the contract. Sickness and high water prevented my cutting it sooner. * * I got the timber off as quick as I possibly could under all the circumstances."

The foregoing abstract contains all the testimony materially affecting the case.

Jenkins v. Lykes and Barco-Opinion of Court.

The first error assigned is that the court permitted testimony to be given by Mr. Barco as to the contents of letters said to have been written to him by defendant, and which letters were not produced nor their loss or destruction shown. While it appears that the witness did so testify, yet when it clearly appeared that some of his testimony related to the contents of the letters, the court ruled that so much of it should be stricken out as illegal. The court added, as appears by the bill of exceptions, that “that which he received verbally from the defendant as well as in writing be admitted as legal testimony.” This is somewhat confused, but we do not understand that the Judge intended to say that so much of the oral testimony as purported to give the contents of letters should be received. He evidently intended to rule that oral admissions were proper testimony, and that the contents of letters were legal testimony when produced ; but he did rule that oral testimony of their contents was not legal evidence, and it could not have been understood that in the same breath he ruled the contrary. The whole matter was explained at the time, and we do not think any mistake was made by the jury on account of it.

The second point in the assignment of errors is that the court admitted the testimony of Atkinson to prove what the words “reasonable time to cut the red cedar timber" meant. It is a familiar and well settled rule that parol evidence is not admissible to vary or contradict the ternis of a written instrument, and that a written contract, which is intelligible on its face, must control, the parties understanding fully what the contract contains. Testimony should not be admitted to prove that a contract, clearly expressed, means a different thing from that which is so expressed. When the witness was permitted to testify that a "reasonable time” meant that the time would ex

Jenkins v. Lykes and Barco-Opinion of Court.

pire when a sale of the land should be made or the note paid, it was allowing a contract to be proved other than that which was signed. A “reasonable time” to cut and take away the cedar means so much time as may be necessary, with ordinary diligence and considering the character and condition of the land and water, to accomplish the thing contemplated, and this was a question for the jury to determine upon evidence given on that subject. There was no testimony on that point except that given by the defendant, who said he got the timber off as quick as he possibly could under all circumstances. Sickness and high water prevented cutting it sooner. This was legitimate testimony, and that given by Mr. Atkinson was erroneously admitted.

The third, fourth, fifth and sixth alleged errors relate to the charge of the court to the jury. The Judge certifies that the several exceptions embodied in the bill of exceptions were not taken at the time the charge was delivered, but the exception was taken to the whole. The settled practice is that exceptions to the charge must be taken at the trial before the cause is submitted to the jury, and the specific portions of the charge excepted to must be then designated, so that if error is perceived it may be corrected before the jury leave the box. By omitting this the party is presumed to acquiesce. There being some sound propositions in it, a general exception to the whole will not avail. In this charge we find some perhaps erroneous instructions and some that are proper statements of the law, but the defendant permitted the whole to go to the jury without pointing out to the Judge those to which he objected.

This question has been very often ruled upon by this court, and we cannot now vary the rule, however erroneous Jenkins v. Lykes and Barco—Opinion of Court.

may have been some of the legal propositions contained in the charge.

After the conclusion of the general charge to the jury the plaintiffs' counsel submitted instructions in writing to be given to the jury, which were given as follows:

First. That a deed in fee simple to lands conveys all the interest and estate of the grantor therein and everything thereon at the time of making the deed not expressly reserved in the deed.

Second. That if, at the time defendant entered into the contract with Atkinson for the purchase of the cedar, Atkinson told the defendant that he was not the owner of the lands, and declined to enter into said contract unless the defendant would agree to cut and remove said cedar before the sale of the lands for the Ferguson estate, and that the defendant agreed thereto, and that this is what was meant by the terms reasonable time in the bill of sale or permit, that the defendant was bound by such agreement, and had no legal right to cut or remove any more of said cedar from said lands after he received notice of the sale without a further contract or permit from the purchaser.

Third. That if they believe from the evidence that at the time plaintiffs purchased said lands from Atkinson, the defendant's permit or authority to cut or remove cedar therefrom had expired, they should find a verdict for the plaintiffs for the net value of all the cedar which it has been proved to their satisfaction the defendant cut and removed therefrom after the purchase of said lands by the plaintiffs and before the commencement of this suit, and interest thereon from the commencement of this suit, even though the defendant had no notice of the purchase of the lands by the plaintiffs.

Counsel for defendant objected to these instructions being

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