{
  "id": 11272005,
  "name": "S. W. ISLER v. GOLDSBORO LUMBER COMPANY",
  "name_abbreviation": "Isler v. Goldsboro Lumber Co.",
  "decision_date": "1908-02-26",
  "docket_number": "",
  "first_page": "556",
  "last_page": "558",
  "citations": [
    {
      "type": "official",
      "cite": "146 N.C. 556"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "125 N. C., 90",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "140 N. C., 470",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
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    {
      "cite": "136 N. C., 176",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8659213
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    {
      "cite": "119 N. C., 39",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8654316
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      "opinion_index": 0,
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        "/nc/119/0039-01"
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  "last_updated": "2023-07-14T15:49:58.256488+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "S. W. ISLER v. GOLDSBORO LUMBER COMPANY."
    ],
    "opinions": [
      {
        "text": "Ct.aR.-r-, C. J.\nThis action is for damages for the wrongful cutting of timber. The defendant\u2019s contract permitted the cutting of timber not less than 12 inches in diameter 24 inches above the ground, when cut, and the right to cut was to continue for ten years from the date of the contract, 21 October, 1899. The evidence of plaintiff tended to show that the defendant had cut and removed trees under the specified size of 12 inches in diameter.\nThe exception of the plaintiff is to the charge of the court, that the plaintiff could not recover damages for cutting such trees as would have grown to the size of 12 inches in diameter by the end of the defendant\u2019s term, on 21 October, 1909. \u25a0This wa\u00e1 erroneous, for two reasons: (1) .if was contrary to the express terms of the contract, which conferred the right to cut only as to trees 12 inches in diameter \u201cwhen cut\u201d; (2) it would be speculative to endeavor to show by evidence what trees less than 12 inches in diameter when cut would or would not have reached that diameter before the expiration of the lease. The only valid test is to lay a rule across the stump to show whether or not the tree measured 12 inches in diameter \u201cwhen cut.\u201d '\nWhen the contract for sale of standing timber did not specify when the diameter should be measured, the purchaser, it was held, could cut only such trees as had attained the prescribed diameter at the date of the contract. Warren v. Short, 119 N. C., 39. The difficulty of showing diameter at date of contract as to trees barely over the prescribed size when cut was such a burden on vendees that, as a protection to them, contracts now usually specify that the diameter of the trees shall be as prescribed, \u201cwhen cut.\u201d The vendor is entitled to the same protection of certainty which has been given to the vendee by the insertion of the words \u201cwhen cut.\u201d\nThe vendee had a right to cut any trees which, at any time during its term, should have actually reached the stipulated size, but not before. Hardison v. Lumber Co., 136 N. C., 176; Lumber Co. v. Corey, 140 N. C., 470.\nAs this error affects only the fourth issue, a new trial is granted only as to that issue. Benton v. Collins, 125 N. C., 90, and cases cited.\nPartial New Trial.",
        "type": "majority",
        "author": "Ct.aR.-r-, C. J."
      }
    ],
    "attorneys": [
      "Bouse & Land and H. E. Shaw for plaintiff.",
      "Thomas D. 'Warren and Simmons, Ward & Allen for defendant."
    ],
    "corrections": "",
    "head_matter": "S. W. ISLER v. GOLDSBORO LUMBER COMPANY.\n(Filed 26 February, 1908).\n1. Contracts \u2014 'Timber\u2014Measurement\u2014When Cut \u2014 Evidence'\u2014-Contradictory \u2014 Uncertain.\nWhen a timber conveyance specifies that the trees shall measure 12 inches \u201cwhen cut,\u201d it was error in the court below to hold that the defendant could cut trees upon the land described that would grow to 12 inches within the time limit of the contract; 1, as being contradictory of the express terms of the contract ; 2, as being too uncertain of proof.\n2. Same \u2014 Measurement\u2014Test.\nThe test as to timber being 12 inches \u201cwhen cut\u201d is to ascertain the correct measurement of the stump.\n3. Appeal and Error \u2014 New Trial as to One issue.\n'When error in the trial of a cause affects only one issue and a new trial is ordered, it will he granted only as to that issue.\nCivil actioN, tried before, Lyon, J., and a jury, at November Term, 1907, of the Superior Court of JoNES County.\nErom judgment for defendant plaintiff appealed.\nThe facts sufficiently appear in the opinion of the Court.\nBouse & Land and H. E. Shaw for plaintiff.\nThomas D. 'Warren and Simmons, Ward & Allen for defendant."
  },
  "file_name": "0556-01",
  "first_page_order": 590,
  "last_page_order": 592
}