
    (48 South. 286.)
    No. 17,109.
    LEE LUMBER CO., Limited, v. HOTARD et al.
    (Jan. 4, 1909.
    Rehearing Denied Feb. 1, 1909.)
    1. Logs and Logging (§ 3*) — Contract—Validity— CERTAINTY — 1 ‘MERCHANTABLE. * ’
    A contract for the sale of all merchantable pine timber, measuring 10 inches in diameter and over, on a described tract of land, was not void for uncertainty, the word “merchantable” being used to describe the grade or quality of the thing sold, and determinable by experts with approximate certainty.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3 ;* Contracts, Cent. Dig. § 890.
    For other definitions, see Words and Phrases, vol. 5, pp. 4489, 4490.]
    2. Logs and Logging (§ 3*) — Sale of Timber —Contract — Certainty — Price — Mutuality of Obligation.
    A contract for the sale of standing timber on certain described land for $1 per thousand feet, to be paid in cash, or vendor’s option of equivalent value, by the vendees on the 15th day of the succeeding month for all timber cut during any month, imposed an obligation on the vendees to cut, haul, and scale the timber, and was therefore not objectionable for uncertainty as to the price.
    [Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12: Dec. Dig. § 3 ;* Contracts, Cent. Dig. § 890.J
    3. Logs and Logging (§ 3s’) — Standing Timber — Sale—Contract—“Cash or Vendor’s Option of Equivalent Value.”
    Where a contract for the sale of standing timber required payment in cash “or vendor’s option of equivalent value,” such clause should be construed to mean only that payment should be made in cash unless vendor chose to accept something other than cash of equivalent value if offered him by the vendee, and did not render the contract uncertain as to the price, as giving the vendor the right to demand something other than money in satisfaction of the debt, and, as so construed, the clause was mere surplusage.
    [Ed. Note". — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. §3;* Contracts, Cent. Dig. § 890.]
    
      4. Logs and Logging (§ 3*) — Sale of Timber-Specific Performance.
    The fact that specific performance of a contract for the sale of standing timber could not be enforced did not deprive the contract of its obligatory character.
    [Ed. Note. — For other cases, see Logs and Logging, Dec. Dig. § 3.*]
    5. Logs and Logging (§ 3*) — Standing Timber — Contract of Sale — Statutes.
    Rev. Civ. Code, art. 2458, providing that when produce or other objects are not sold in a lump, but by measure, the sale is not perfect, inasmuch as the thing so sold is at the risk of the seller until measured, but the buyer may require either the delivery of them or damages, if there be any, in case of nonexecution of the contract, is applicable to a sale of standing timber, the title to -which does not pass until it has been cut.
    [Ed. Note. — For other cases, see Logs and Logging, Dec. Dig. § 3.*]
    6. Logs and Logging (§ 3*) — Standing Timber-Contract of Sale.
    A contract of sale of standing timber of certain dimensions on described land for a specified price per thousand feet, to be paid on the 15th day of the month succeeding that in which the timber was cut, constituted a valid sale of the timber, and, being recorded, was valid as against third persons.
    [Ed. Note. — For other cases, see Logs and Logging, Dec. Dig. § 3.*]
    7. Property (§ 4*) — Standing Timber — Sale —Effect.
    Trees continue to be real estate, after they are sold apart from the land, until severance.
    [Ed. Note. — For other eases, see Property, Cent. Dig. § 4; Dec. Dig. § 4.*]
    8. Injunction (§ 186*) — Dissolution—Counsel Fees.
    Defendant is not entitled to counsel fees for dissolving an injunction, where the services of his counsel were rendered exclusively on the trial of the case on the merits.
    [Ed. Note. — For other eases, see Injunction, Cent. Dig. § 403; Dec. Dig. § 186.*]
    Appeal from Thirteenth Judicial District Court, Parish of Rapides; Wilbur Fisk Black-man, Judge.
    Action by the Lee Lumber Company, Limited, against Albert E. Hotard and others. From a judgment for plaintiff, defendants appeal.
    Reversed and dismissed.
    Robert P. Hunter & Sons and W. C. & J. B. Roberts, for appellants. Blackman & Overton, for appellee.
   PROVOSTY, J.

By a contract dated October 14, 1906, and recorded October 22, 1906, J. N. Thornhill sold to plaintiff a certain tract of land, including the timber thereon; and by another contract dated September 24, 1906, and recorded on the same day, he sold to plaintiff all the timber upon another tract. He had previously entered into the following agreement with reference to the same timber:

“Buckeye, P. O., La., August 16th, 1905.
“State of Louisiana, Parish of Rapides.
“Know all men by these presents and this instrument that I, J. Newton Thornhill, of the first part, a resident of Buckeye, P. O., Rapi-des parish, Louisiana, agree and covenant with J. N. Graves and J. L. Head, parties of the second part and residents of Buckeye P. O., Louisiana, as follows, to-wit:
“Party of the first part bargains and sells to parties of the second part, their heirs and assigns, all merchantable pine timber measuring (10) ten inches in diameter and over, on the following tract of land, to-wit:
“E. % N. E. %, E. y2 of 8. E. % of Sec. 6 T. S. 4 N. 3 East La. Mer.
“This for and in consideration of one dollar (83.00) per thousand feet, which sum is to be paid in cash or vendor’s option of equivalent value by parties of the second part to parties of the first part in the following order: All timber cut, hauled and scaled m a given month up to and including the last day of the month, shall be payable on the 15th day of the succeeding month, this giving parties of the second part 15 days grace on each monthly settlement, and further that the agreement shall be in force from date until (10) ten years after date.
“This acknowledges the receipt of one dollar by party of the first part as a part payment'in advance.
“[Signed] Newton Thornhill.
“J. N. Graves.
“J. L. Head.
“Witness:
“I. D. Reynolds.
“S. C. Greer.”

This agreement was recorded September 18, 1905.

Graves and Head, the parties with whom this agreement was made, purchased a sawmill already on the land, and began cutting and sawing the timber. They cut and sawed 125,000 feet for which they paid Thorn-hill at the agreed price of $1 per thousand. In November or December, 1905, they left the place, and went to the adjoining parish of Avoyelles. They took away the whistle and belting of the sawmill, and shortly aft-erwards the saw. In March, 1906, they sold the sawmill to the International Lumber Company, and transferred to said company all their right, title, and interest under the said agreement; and on October 11, 1906, this company made a similar sale and transfer to the defendant. These transfers were recorded the day following their respective dates.

When the defendant Hotard attempted to cut the timber in accordance with this agreement, the plaintiff by the present suit enjoined him from doing so.

Plaintiff contends that the foregoing agreement with Graves and Head does not evidence a binding contract, and that consequently Thornhill was at liberty to disregard it and sell the timber to some one else.

In support of this, it is said that there is no certainty in the thing sold, because only the merchantable timber is sold, and no rule is furnished by which to determine which part'of the timber is not merchantable; and evidence is offered to the effect that experts will disagree with regard to the merchantability of any particular timber.

In answer to this, we will say that the word “merchantable” is commonly used in sales in describing the grade or quality of the thing sold, and that no one has heretofore thought of suggesting that the object sold was thereby made so uncertain as to invalidate the contract. There can be no question that experts can determine with approximate certainty the merchantability of timber — they are doing it every day — and the parties to this contract must be understood to have intended that such approximate certainty should answer the purpose of their ■contract. It must be assumed that they thought that there would not likely be any disagreement if the contract1 were carried out in á spirit of fairness on both sides, and that in the contrary case the courts could decide.

In this connection, the present case differs, toto cselo from that of Werner Sawmill Co. v. O’Shee, 111 La. 817, 35 South. 919, in which .the agreement whs that the parties themselves — in other words, not the courts —should name the experts, and one of them refused to do so, thereby rendering the contract impossible of execution.

It is next argued that there is uncertainty also as to the price, because the object sold is not all the merchantable timber upon the land, but only that part of it which Graves and Head or their assigns may cut, without there being any obligation on their part to cut any.

We think there is ah obligation on the part of Graves and Head to cut, haul, and scale the timber. After having signed an instrument by which they bought timber to be paid for when cut, hauled, and scaled, they could not be heard to deny that they were under obligation to cut, haul, and scale the timber. The contract manifestly contemplated that the timber should be cut, hauled, and scaled by them; and, by signing it, they assumed that obligation.

The broad distinction between such a case and those of Union Sawmill Co. v. Lake, 120 La. 106, 44 South. 1000, and Thompson v. Union Sawmill Co., 121 La. 318, 46 South. 341, is that in the latter cases the contract, for one thing, was not signed by the vendee, and, for another, became void for nonaccom-plishment of one of its conditions.

The price is said to be uncertain for the further reason that the stipulation is that it is to be paid “in cash or vendor’s option of equivalent value.”

Of' course, if the clause “or vendor’s option of equivalent value” were given the meaning that the vendor was to have the right to demand of the vendee something other than money, there would be fatal uncertainty in the price. But that clause, as we read it, means nothing more than that the payment should be in money, unless the vendor chose to accept something else of equivalent value if offered him. As thus read, the clause is mere brutum fulmen and surplus-age. The clause could not possibly be accepted as written, because as written it would mean that the vendor was to have the right to exact from Graves and Head in payment of the timber any and whatever they might own of equivalent value to the timber; for instance, to put an extreme case, that he might thus demand the very shirts from their backs.

The circumstance that specific performance of the contract could not be enforced — if such were in fact the case — would not deprive the contract of its obligatory character. It is more the exception than the rule when specific performance of contracts can be enforced.

Nor is the circumstance that in case the trees perished the loss would fall upon Thornhill a test of the existence vel non of a contract, .and of the contract being a sale. Article 2458, Rev. Oiv. Code, provides for just that kind of a sale. It reads:

“When goods, produce, or other objects, are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect, inasmuch as the things so sold are at the risk of the seller, until they be weighed¡ counted or measured; but the buyer may require either the delivery of them or damages, if there be any, in case of non-execution of the contract.”

The principle embodied in this article is equally applicable to a sale of trees which are not to pass into ownership of vendee until they have been cut down.

We say nothing of the lease by Thornhill to Graves and Head, as it was recorded after the sale to plaintiff, and is not insisted on in defendants’ brief.

The point is not discussed in the briefs whether the contract, conceding it to have been valid and to have been a sale, had the effect of transferring the ownership of the trees, or, if not, whether it had the effect of creating a right upon them such as would follow them into the hands of any third person to whom Thornhill might sell them. Waiving the point whether a sale by weight, tale, or measure conveys the ownership before the thing sold has been weighed, counted, or measured, we think that such a sale as the one in question in this case has all the effects of a promise of sale, and that a promise of sale of real estate follows the thing into the hands of third persons. By recent statutes, trees continue to be real estate after they are sold.

The services of counsel having been rendered exclusively upon the trial of the case on the merits, defendant is not entitled to counsel fees for dissolving the injunction. The other damages could only have been very small, and the claim for them is not seriously pressed.

It is ordered, adjudged, and decreed that the judgment appealed from be set aside, and that there be judgment in favor of defendants and against plaintiff dismissing plaintiff’s suit, and setting aside the injunction herein, and that plaintiff pay all costs.  