#### C. B. FINGER v. J. A. GOODE.

(Filed 5 May, 1915.)

Deeds and Conveyances — Contracts—Interpretation—Intent—Timber—Right to Sell Reserved.

An express written agreement made between tbe owner of lands wliereon timber is growing, and another, whereby the latter was to cut the timber, with certain provisions as to a division of profits, etc., containing the further provision that if the owner “shall sell and convey any and all of the lands herein mentioned and described this contract shall be null and void as to the part sold and conveyed,” must be so construed as to effectuate the intention of the parties as gathered from the language employed, and admits only of the interpretation that the owner may at any time during the life of the contract sell off portions of the land, though after the other contracting party had begun to cut the timber.

Appeal by plaintiff from Adams, J., at February Term, 1915, of LINCOLN.

Civil action beard on case agreed.

On tbe bearing it was properly made to appear tbat plaintiff owned and operated a sawmill and defendant owned a body of land lying in Lincoln County, known as tbe Derr lands, composed of different and coterminous tracts and amounting to about 700 acres, and, in December, 1909, tbe two entered-into a contract in terms as follows:

“Tbis agreement made tbis 11 December-, 1909, between J. A. G-oode of tbe county of Lincoln, State of North Carolina, of tbe first part, and Calvin Finger of said county and State, of tbe second part, witnessetb: Tbat tbe said J. A. Goode does tbis day contract and agree to let tbe said O. B. Finger saw witb a sawmill and convert into lumber all tbe timber now standing on tbe said J. A. Goode lands known as tbe ‘Derr Lands,’ containing about 700 acres, adjoining tbe lands of M. A. Ewing, J. P. Mullen, and others.

“And it is further agreed tbat each of said parties shall pay one-balf of all expense in chopping and hauling all logs to sawmill and delivering all lumber to market, and expense of collecting pay for same.

“And it is further agreed tbat tbe sawing of said timber into lumber shall be a rebuttal in full against the timber as it now stands. '

“And it is further stipulated and agreed tbat each of tbe parties herein named shall receive one-balf of all tbe proceeds derived from tbe sale of all said lumber. It is further agreed if tbe price of lumber should decline below $1 per hundred.f. o. b. railroad, tbe sawing shall cease until tbe price shall again advance to $1 per hundred f. o. b. railroad : Provided, if tbe said J. A. Goode shall sell and convey any or all of the land herein mentioned and described, tbis contract shall at once become null and void as to tbe part sold and conveyed.

“It is further agreed tbat in case tbe said J. A. Goode shall sell tbe timber in a body, then and in that case tbe said C. B. Finger is to cut *73and saw said timber at customary prices.” Signed and sealed by tbe parties.

Tbat plaintiff placed bis mill on tbe said lands of defendant and began cutting tbe timber, and while there defendant sold. 377 acres of tbe land to one J. Smith Campbell, and plaintiff was thereby prevented from cutting tbe timber on tbe 377 acres.

Tbe ease on appeal further states tbat it was agreed by tbe parties tbat if, upon a proper construction of tbe contract, defendant bad a legal right to sell said 377 acres after plaintiff began to cut tbe timber, tbat plaintiff bad no cause of action, and tbe court having intimated an opinion in favor of defendant on tbe proposition as submitted, in deference to such intimation plaintiff submitted to a nonsuit and appealed.

G. F. Ghilds, G. A. Jones, 8. B. Sparrow for plaintiff.

Byburn & Ilóey, D. Z. Newton, K. B. Nixon for defendant.

HoKe, J.

In tbe recent case of Gilbert v. Shingle Co., 167 N. C., pp. 286-288, it is said to be tbe accepted rule of construction of written contracts: “Tbat tbe intent of tbe parties as embodied in tbe entire instrument should prevail, and tbat each and every part shall be given effect if it can be done by fair and reasonable intenlment, and tbat in ascertaining this intent resort should be bad, primarily, to tbe language they have employed, and where this language expresses plainly, clearly, and distinctly tbe meaning of tbe parties, it must be given effect by tbe courts, and other means of interpretation are not permissible,” citing McCallum v. McCollum, post, 310; Kearney v. Vann, 154 N. C., 311; Hendricks v. Furniture Co., 156 N. C., 569; Bridgers v. Ormond, 153 N. C., 114; Davis v. Frazier, 150 N. C., 447; Walker v. Venters, 148 N. C., 388.

In tbe present case tbe contract contains express stipulation tbat “If tbe said J. A. Goode shall sell and convey any or all of tbe land herein mentioned and described, tbe contract shall at once become null and void,” and there is nothing anywhere in tbe instrument to indicate tbat tbe force and effect of this provision shall be restricted to tbe period of time tbat might elapse before operations were commenced; indeed, there is nothing to indicate tbat there was to be any such period. Tbe plain and natural meaning of tbe language is tbat tbe stipulation is to prevail through tbe life of the contract, and, applying tbe principle of interpretation above referred to, we concur in bis Honor’s view tbat, on sale of tbe land or any part of it, tbe contract obligations of tbe parties, concerning tbe portion sold, should cease.

There is no error, and tbe judgment of tbe Court below is

Affirmed.