DOWDELL, J. —
This is an action brought by the plaintiff, E. H. Robertson, appellee here, against the Byrne Mill Company, a firm, or partnership, for the breach of a contract entered into by said Byrne Mlil Company Avith - one Warren Hamilton, and Avhich contract Avas by said Hamilton assigned to the plaintiff. The [282]*282complaint as amended contained two counts. In the first count the contract sued on is set out in full, aud by reference thereto is adopted into the second count/ The alleged breach .of the contract consisted in a failure" and refusal on the part of the defendants to deliver to the plaintiff certain lumber described in the complaint, and which plaintiff claims, under the terms of the contract, the defendants Avere bound to deiiA^er. To- both counts of the complaint as amended the defendants filed demurrers, Avhich were upon consideration by the court overruled. The defendants then moved to strike certain parts of the complaint, .which motion Avas by the court overruled. Pleas were then filed, to several of which demurrers interposed by the plaintiff were sustained.
The main question raised by these pleadings and rulings is the proper, construction of the contract sued on; the insistence of the appellants being that the contract is void for indefiniteness and uncertainty./ This contention is chiefly based on the following provisions contained in the contract: “The said Byrne Mill Company hereby agrees to manufacture, sell, and deliver to the said Warren Hamilton, and the said Warren Hamilton agrees to buy and receive from the said Byrne Mill Company at their mill near Stockton, Ala., the following lumber, to-wit: All of the sap hoards, other than what is knoAvn as ‘mill culls,’ they make AAdiile operating their mill on other regular orders/j The said Warren Hamilton is to receive said sap boards as they run, consisting of number 2 common and better, and also any boards that will not grade heart face; width of said sap. boards to run from three inches and up, and length of ten, twelve, fourteen, sixteen, eighteen, and twenty-feet, but no more than ten per cent to run ten feet. The said Byrne Mill Company agrees not to select or pick out anything from the side board run of the mill, except what will go one by four and up, heart face; but all the sap boards of all widths are to be considered in this agreement and are to be delivered as they run at the mill, end of the roller way at the end of the dry kiln at said mill. * * * The price to' be paid by the said Warren Hamilton for the sap boards shall be five dollars and fifty ($5.50) per thousand feet superficial (no odd [283]*283lengths counted), as fast as loaded on cars at Mobile, sixty days negotiable bankable paper, for all lumber, dressed or rough, and for all dry kiln lumber shipped by said Warren Hamilton previous to the erection and operation of his planing mill.” It may be said that the contract was unskillfully drawn; but it is not so indefinite and uncertain in its terms as to vender the ascertainment of its meaning or of the intention of the parties to it impossible. When it can be done consistently with the expressed intention of the parties, that construction should be given to contracts Avhich Avill uphold, rather than defeat, them . A maxim of the law is “ITt res magis valeat quam pereat.” Here the intention is clearly expressed on the one part to sell and on the other to purchase certain lumber, and the further intention of the parties that the seller shall deliver at a particular place certain lumber described in the contract and the purchaser to receive and pay for the same at a price fixed, namely, “five dollars and fifty cents ($5.50) per thousand feet superficial as fast as loaded on cars at Mobile, sixty days negotiable bankable paper.”
It is insisted that the provision “as fast as delivered on cars at Mobile” is a contingency that may never happen, and, as no obligation is imposed by the contract to load on the cars at Mobile, the contract is clearly rendered indefinite as to time of payment. Whether there is an implied promise, or not, in this provisions on the part of the plaintiff to load the lumber on the cars at Mobile, Ave need not decide. It is evident that this provision Avas inserted for the benefit of the plaintiff, and Avithout it, no time being definitely fixed, the laAV Avould imply a reasonable time. The question here involved is fully covered by the principle laid doA\m in Culver v. Caldwell, 137 Ala. 132, 31 South. 13.
It is further insisted that in the phrase employed in the contract, “negotiable bankable paper,” the Avords “bankable paper” are meaningless. If this Avere true, the word “bankable” might be regarded as surplusage Avithout altering or changing the contract, as affecting the intention of the parties entering into it; but the [284]*284words “bankable paper” are not without a definite or certain meaning. See 5 Oyc. p. 226.
The stipulation in the contract to deliver the lumber is an independent covenant. By the express terms of the contract it is made a condition precedent to the duty of payment by the purchaser. Therefore, a failure or refusal to deliver would constitute a breach, for which an action would immediately lie. However, where the contract is to be a continuing one, with stipulation for the delivery of goods by the seller at different times, and the payments to be made by the purchaser as the goods are delivered, we are not to be understood as' holding that the seller would not be justified in terminating the contract to further deliver upon the failure: and refusal of the purchaser to perforin his jiart of the conti act by payment for the goods already delivered; but such right to terminate the contract by the seller may be waived expressly or by conduct.
By the express terms of the contract it is provided “that the said Byrne Mill Company have nothing to do with the planing mill and dry-kiln business, but said Warren Hamilton shall have full charge and control of everything pertaining to said dry-kiln and planing mill.” We think from this it is made perfectly plain that the provisions in the contract relating to the planing mill and dry kiln were inserted for the sole benefit of Warren Hamilton, or1 his assigns, and in no manner affect the contract as to the sale and delivery of the lumber 'as stipulated.
It is also insisted that, in the provision in the contract fixing the price to be paid for the lumber, the clause “for all lumber, dressed, or rough, and for all dry-kiln lumber shipped by said Warren Hamilton previous to the erection and operation of his planing mill,” renders the contract incomplete, because the same “fixes the price for only an undetermined portion of the lumber agreed to be sold, namely, such as might be shipped previous to the erection and operation of a planing mill, and no price for that which might be shipped subsequent to the erection and operation of the planing mill.” We think this is a strained construction to put upon said provis[285]*285ion in the contract. The provision is “for all lumber, dressed or rough, and. for all dry-kiln lumber shipped by said Warren Hamilton previous to the erection and operation of his planing mill.” It is evident that the word" “all lumber, dressed or rough,” included all dry-kiln lumber shipped by said Hamilton. Tire words “previous .to the erection and operation of his planing mill” are limited to the “dry-kiln lumber shipped,” and not to “all lumber, dressed or rough.” The use of the word “for,” as employed in the clause, we think clearly indicates this.
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DOWDELL, J. —
This is an action brought by the plaintiff, E. H. Robertson, appellee here, against the Byrne Mill Company, a firm, or partnership, for the breach of a contract entered into by said Byrne Mlil Company Avith - one Warren Hamilton, and Avhich contract Avas by said Hamilton assigned to the plaintiff. The [282]*282complaint as amended contained two counts. In the first count the contract sued on is set out in full, aud by reference thereto is adopted into the second count/ The alleged breach .of the contract consisted in a failure" and refusal on the part of the defendants to deliver to the plaintiff certain lumber described in the complaint, and which plaintiff claims, under the terms of the contract, the defendants Avere bound to deiiA^er. To- both counts of the complaint as amended the defendants filed demurrers, Avhich were upon consideration by the court overruled. The defendants then moved to strike certain parts of the complaint, .which motion Avas by the court overruled. Pleas were then filed, to several of which demurrers interposed by the plaintiff were sustained.
The main question raised by these pleadings and rulings is the proper, construction of the contract sued on; the insistence of the appellants being that the contract is void for indefiniteness and uncertainty./ This contention is chiefly based on the following provisions contained in the contract: “The said Byrne Mill Company hereby agrees to manufacture, sell, and deliver to the said Warren Hamilton, and the said Warren Hamilton agrees to buy and receive from the said Byrne Mill Company at their mill near Stockton, Ala., the following lumber, to-wit: All of the sap hoards, other than what is knoAvn as ‘mill culls,’ they make AAdiile operating their mill on other regular orders/j The said Warren Hamilton is to receive said sap boards as they run, consisting of number 2 common and better, and also any boards that will not grade heart face; width of said sap. boards to run from three inches and up, and length of ten, twelve, fourteen, sixteen, eighteen, and twenty-feet, but no more than ten per cent to run ten feet. The said Byrne Mill Company agrees not to select or pick out anything from the side board run of the mill, except what will go one by four and up, heart face; but all the sap boards of all widths are to be considered in this agreement and are to be delivered as they run at the mill, end of the roller way at the end of the dry kiln at said mill. * * * The price to' be paid by the said Warren Hamilton for the sap boards shall be five dollars and fifty ($5.50) per thousand feet superficial (no odd [283]*283lengths counted), as fast as loaded on cars at Mobile, sixty days negotiable bankable paper, for all lumber, dressed or rough, and for all dry kiln lumber shipped by said Warren Hamilton previous to the erection and operation of his planing mill.” It may be said that the contract was unskillfully drawn; but it is not so indefinite and uncertain in its terms as to vender the ascertainment of its meaning or of the intention of the parties to it impossible. When it can be done consistently with the expressed intention of the parties, that construction should be given to contracts Avhich Avill uphold, rather than defeat, them . A maxim of the law is “ITt res magis valeat quam pereat.” Here the intention is clearly expressed on the one part to sell and on the other to purchase certain lumber, and the further intention of the parties that the seller shall deliver at a particular place certain lumber described in the contract and the purchaser to receive and pay for the same at a price fixed, namely, “five dollars and fifty cents ($5.50) per thousand feet superficial as fast as loaded on cars at Mobile, sixty days negotiable bankable paper.”
It is insisted that the provision “as fast as delivered on cars at Mobile” is a contingency that may never happen, and, as no obligation is imposed by the contract to load on the cars at Mobile, the contract is clearly rendered indefinite as to time of payment. Whether there is an implied promise, or not, in this provisions on the part of the plaintiff to load the lumber on the cars at Mobile, Ave need not decide. It is evident that this provision Avas inserted for the benefit of the plaintiff, and Avithout it, no time being definitely fixed, the laAV Avould imply a reasonable time. The question here involved is fully covered by the principle laid doA\m in Culver v. Caldwell, 137 Ala. 132, 31 South. 13.
It is further insisted that in the phrase employed in the contract, “negotiable bankable paper,” the Avords “bankable paper” are meaningless. If this Avere true, the word “bankable” might be regarded as surplusage Avithout altering or changing the contract, as affecting the intention of the parties entering into it; but the [284]*284words “bankable paper” are not without a definite or certain meaning. See 5 Oyc. p. 226.
The stipulation in the contract to deliver the lumber is an independent covenant. By the express terms of the contract it is made a condition precedent to the duty of payment by the purchaser. Therefore, a failure or refusal to deliver would constitute a breach, for which an action would immediately lie. However, where the contract is to be a continuing one, with stipulation for the delivery of goods by the seller at different times, and the payments to be made by the purchaser as the goods are delivered, we are not to be understood as' holding that the seller would not be justified in terminating the contract to further deliver upon the failure: and refusal of the purchaser to perforin his jiart of the conti act by payment for the goods already delivered; but such right to terminate the contract by the seller may be waived expressly or by conduct.
By the express terms of the contract it is provided “that the said Byrne Mill Company have nothing to do with the planing mill and dry-kiln business, but said Warren Hamilton shall have full charge and control of everything pertaining to said dry-kiln and planing mill.” We think from this it is made perfectly plain that the provisions in the contract relating to the planing mill and dry kiln were inserted for the sole benefit of Warren Hamilton, or1 his assigns, and in no manner affect the contract as to the sale and delivery of the lumber 'as stipulated.
It is also insisted that, in the provision in the contract fixing the price to be paid for the lumber, the clause “for all lumber, dressed, or rough, and for all dry-kiln lumber shipped by said Warren Hamilton previous to the erection and operation of his planing mill,” renders the contract incomplete, because the same “fixes the price for only an undetermined portion of the lumber agreed to be sold, namely, such as might be shipped previous to the erection and operation of a planing mill, and no price for that which might be shipped subsequent to the erection and operation of the planing mill.” We think this is a strained construction to put upon said provis[285]*285ion in the contract. The provision is “for all lumber, dressed or rough, and. for all dry-kiln lumber shipped by said Warren Hamilton previous to the erection and operation of his planing mill.” It is evident that the word" “all lumber, dressed or rough,” included all dry-kiln lumber shipped by said Hamilton. Tire words “previous .to the erection and operation of his planing mill” are limited to the “dry-kiln lumber shipped,” and not to “all lumber, dressed or rough.” The use of the word “for,” as employed in the clause, we think clearly indicates this.
The contract contains the following provision: “It is distinctly understood and agreed that the said Hamilton or the Byrne Mill Company has the right to transfer or assign this contract and all rights and liabilities assumed herein to any person or persons.” From this it is manifest that it was not the intention of the parties that the provision relating to the skill of Warren Hamilton should any Avise affect the contract as to the sale and purchase of the lumber in question. The matter of skill of Warren Hamilton relates entirely to the use of the dry kilns and planing mill, and, as we have said above, these provisions in the contract are solely for the benefit of said Hamilton.
■ By the terms of the contract, no duty or obligation rested upon the defendants to operate their mill. The extent of the obligation imposed Avas to deliver certain described lumber that they might make Avhile operating their mill “on other regular orders.” It is evident, therefore, that damages for failure to deliver lumber based 'upon a prospective operation of the mill Avould be entirely speculative. This feature of the contract, we think, clearly differentiates this case from that class of cases cited by couusel for appellee, where the recoverable damages in an action for the breach of the contract before the time of its completion may be estimated and computed to the end of the contract period. Upon like principle in this suit only such damages can be recovered as existed at the time of the commencement of the action and resulting from a nondelivery of the lumber up to that time. It would be an anomaly to hold that damages which could not be recovered at the commence[286]*286ment of the suit because of being speculative might nevertheless, by results transpiring subsequent to suit brought, become recoverable in the particular suit. Nor do we think in this case that the situation is relieved by the averment in the complaint that the defendants notified the plaintiff that they would not perform the contract.
The contract contained the following clause: “This .agreement to remain in full force and effect for one year; but said Hamilton has the right to renew the same for five years additional.” We construe this to mean nothing more nor less than an option to Hamilton to extend the contract for a period of five years. The same consideration which supported the original contract was sufficient to support the extended contract; and in the exercise of this option by Hamilton it was not necessary for the parties to enter into any new writing to save it from the statute of frauds. The original contract itself, which was in writing, was sufficient to this end, and in the exercise of the option or right any unequivocal notice by Hamilton to the defendants that the' contract would be continued for five years, given before the expiration of the first period, would be sufficient. We do not think that the statute of frauds has any application.
While the first count of the complaint contains an averment of the .assignment of the contract to the plaintiff, the second count does not. The second count does by reference adopt into it the contract as set out in the first count, but does not by such inference adopt the averments of the first count relative to the assignment of the contract. In this respect the second count of the complaint was defective, and subject to demurrer.
The motion to strike from the complaint that portion relating to damages based upon the future operation of the mill by the defendants was the proper mode of reaching the objectionable matter1, and should have been sustained, although the same end might have been acconxplished on objections to evidence or requested instructions to the jury.' — Kennon v. W. U. Tel. Co., 92 Ala. 399, 9 South. 200; Daughtery v. W. U. Tel. Co., 75 Ala. 168, 51 Am. Rep. 435.
[287]*287The foregoing views will point out sufficiently the errors committed on the trial, and will serve as a guide upon another trial. For the errors indicated, the judgment of the court will be reversed, and tlie cause remanded.
Reversed and remanded.
Tyson, C. J., and Anderson, and McClellan, JJ., concur.