Beaufort County Lumber Co. v. Johnson

dissenting. This is an action brought by the plaintiff-respondent on the 5th day of April, 1915, to restrain the defendants-appellants from cutting and removing certain timber and asking for a decree adjudging that the plaintiff had complied with the contract hereinafter particularly set forth in the answer of the defendant, John *162 son. The case was referred to A. B. Jordan, master, to take the testimony by order dated June 14, 1915, which reference was held on August 10, 1915. The case was heard before ITon. T. J. Mauldin at the October term, 1915. The decree of the Circuit Court granted the relief demanded by the plaintiff, whereupon the defendants gave due notice of appeal upon the exceptions set forth in the record. The exceptions, 20 in number, raise two questions: (1) Whether it. was necessary for the respondent before the original ten-year period expired to give notice to the appellant what additional period of ten years it would desire; (2) and in not finding that the respondent had forfeited its rights by failing to tender the 6 per cent, upon the purchase price before December 31, 1914. The exceptions raising the second point must be overruled. The facts in the case show beyond question that the tender was made within the time. The deed provides “that upon the payment of interest upon the purchase price hereinbefore stated at the rate of 6 per cent, per annum, payable at the end of each calendar year, such additional period as may be desired, not exceeding ten years,” may be had. Under the terms of the deed the respondent had until the 19th of February, 1915, to make the payment. The payment made in December, 1912, extended the deed from February 19, 1913, to February 19, 1914, and the payment made December 16, 1913, extended the time from February 19, 1914, to February 19, 1915.

4 As to the exception raising the first question: This exception should be sustained, as there was not a compliance with the terms to extend the option as required by law. The respondent did not give notice that he desired to exercise the right to extend an option which it had beyond the fixed time before its time expired, and give notice that it would pay the amount agreed upon in strict accord with the terms of the agreement of the parties and indicate the number of additional years of additional time needed in order that, the extended time might be deter *163 mined definite and fixed so that each party might know what to rely on.

The Court laid down the rule in Minshew v. Atlantic Coast Lumber Corp., 98 S. C. 22, 81 S. E. 1207. Had the respondent followed the rule as laid down in that case and notified in. advance the appellant of the additional time needed, and paid as provided for in the agreement and given notice in advance that it would pay as provided for in the agreement, then there would have been no difficulty. This case conclusively decides what is necessary to extend the option in all cases, and no other inference can be drawn from that case but that, before the time fixed has expired, notice must be given to the other party, and what that notice must contain. In extending the option under that case this notice must bé given whether the original agreement between the parties provided for an indefinite extension or for a term of years, the intention being that the parties might' have a fixed, definite, and determined time and know exactly where they were and what to rely upon in making their arrangements as to how to use the premises. To hold otherwise would allow the purchasers of the timber to play with the owner of the premises as a cat plays with a mouse.

We have in this case an effort to draw a distinction between the case at bar because it is for a term of years in the agreement and in the Minshew case for an indefinite extension. The last case laid down in no uncertain terms what should be done to legally extend the option, and the Court must sustain the exceptions herein or recede from the ruling in that case. Any decision of this Court that lays 'down the law that affects interests is attacked in every conceivable way, openly and insidiously and in every case afterwards an effort made to induce the Court to overrule its decision or modify the same.

The Court having with care and deliberation decided what the law in such cases is, and laid down the rule for the guidance of the public, I am in favor of adhering to that *164 rule, and not being drawn from it by the finespun differentiation of the facts in the cases.

The judgment should be reversed.

4, 5 concurring. I concur with the Chief Justice in result. The original contract provided for an additional period, not periods. The plaintiff, therefore, had the* right to only one extension, but in 1912 the defendant received $90.00, which he acknowledged as “being the first of the annual extensions.” In 1913 a similar payment is made with the same statement as to “annual extensions.” The payment in 1912 was in advance for 1913 and a part of 1914. The payment in 1913 was for the balance of 1914 and up to February 19, 1915. The tender on February 13, 1915, was in time. While the original contract contemplated only one extension, the subsequent written statements (that the extension for ten years should be annual), it seems to me, estops the defendant to deny that the extensions should continue to be annual extensions. I therefore concur in the result.

The opinion of the Court was delivered by

*159 This is an action to enjoin the defendants from cutting and removing certain timber under the contract described in the pleadings. The facts are fully stated in the decree of his Honor, the presiding Judge, which will be reported.

The questions involved arise principally out of the following provision of the contract:

“The said party of the first part, for himself and his heirs, executors, administrators, and assigns, further covenants to and with the said parties of the second part, their heirs, executors, administrators, and assigns, that the said parties of the second part, their heirs, executors, administrators, and assigns, shall have the full term or period of ten years from the date hereof to cut and remove said timber, and upon payment of interest upon the purchase price hereinabove stated, at the rate of 6 pfer cent, per annum, payable at the end of each calendar year such additional period as may be desired, not exceeding ten years.”

While the exceptions are numerous, there are practically but two assignments of error.

1, 2 The first question that will be considered is whether there was error on the part of his Honor, the Circuit Judge, in his construction of the words “calendar year,” as used in said contract. We do not deem it necessary to add anything to the language of the Circuit Judge in disposing of this question, and the decree in this respect is affirmed, for the reasons therein stated.

3 The next question is whether there was error on the part of the Circuit'Judge in ruling that the right of the plaintiff to an extension of time was not forfeited by reason of the fact that it failed to notify the defendants that it desired an additional period for cutting and removing the timber, which extension of time, it is contended, should have been specified when the notice was given. It seems that Minshew v. Lumber Corporation, 98 S. C. 8, 81 S. E. 1027, is the principal case relied upon to show such error. In Gray v. Lumber Co., 102 S. C. 289, *160 86 S. E. 640, the case of Minshew v. Lumber Corporation is thus construed by the Court

“In Minshew’s case the contract provided that the time limit should be five years from the time the grantee began cutting and removing the timber, but that it might be extended from year to year thereafter upon the payment of interest at 6 per centum per annum on the purchase price. It was held, inter alia, that the grant being silent as to when the cutting should begin, the law implied that it should begin within a reasonable time; that no general rule could be laid down as to what would be a reasonable time in all cases, but that must be determined upon the facts and circumstances of each case; * * * that the right granted was of a terminable nature, and was terminated by the failure to begin cutting the timber within a reasonable time; that to obtain the benefit of an option for an extension of the time the grantee must, before the time expires, pay or tender, yearly in advance, the agreed interest on the purchase price according to the terms of the contract, and this because, after a reasonable time has elapsed, and the right has terminated, it cannot be revived by a mere offer to comply with the option for an extension.”

Reference to the Minshew case will show that the question under consideration was not involved in that case. The case in which the facts were more nearly similar to those in the present case than any other is the case of Timber Co. v. Prettyman & Sons, 97 S. C. 247, 81 S. E. 484; the only difference being that in the Prettyman case there was no limitation expressed in the contract as to the additional period, while in the present case the additional period was not to exceed ten years. In the Prettyman case it was held that, where a timber deed gave to the grantee ten years in which to cut and remove the timber, and provided that in case the timber was not cut and removed before the expiration of such period, the grantor should have such additional time as it might desire, but that in such event it should, during such extension period, pay interest on the original purchase price, annually *161 in advance, the right to an extension was not dependent upon the condition that the grantee should commence the cutting and removal of the timber within the first ten years, and that under such deed the grantee was entitled to such extension of time for cutting and removing the timber as it desired, and not merely to a reasonable time, since the deed was unambiguous and express. There is no difference in principle between the two cases and those stated by his Honor, the Circuit Judge.

For these reasons, the judgment is affirmed.