Hearne v. . Perry

AlueN, J. The contract gives to the plaintiff two years and six months within which to cut and remove the timber, the time to commence “from the date of commencing sawing the timber,” and it therefore became very material to have some stipulation which would prevent the plaintiff from postponing indefinitely the time when he would remove his mill to the land of the defendant and begin his work, and it was for this reason that it was made a provision of the contract that the plaintiff should begin “the same within a reasonable time and move his mill to said land as soon as he finished his present location.” This is the contract of the parties and the court cannot do otherwise than enforce it, and the plaintiff having admitted that he has not performed his part of the contract; that he has never attempted to move his mill to the land of the defendant; that he did not attempt to go from the place where he was then working to begin work under the contract, and that he made no move to cut the timber of the defendant until eighteen months after the contract was. executed, he cannot maintain his action. *104 The controlling; principle is stated in Supply Co. v. Roofing Co., 160 N. C., 445, as follows: “In Ducker v. Cochran, 92 N. C., 597-600, Ghief Justice. Smith, delivering the opinion, said: 'The proposition is too plain to need any reference to authority in its support, that a party to a contract cannot maintain an action against another for its breach without averring and proving performance of his own antecedent obligations or some legal excuse for nonperformance, or, if the stipulations are concurrent, his readiness and ability to perform.’ This statement has been quoted with approval in Corinthian Lodge v. Smith, 147 N. C., 246; Tussey v. Owen, 139 N. C., 457-461, and the principle is one very generally recognized in-our decisions. Wildes v. Nelson, 154 N. C., 590; Hughes v. Knott, 140 N. C., 550.” There is no error in the judgment of nonsuit. Affirmed.