Bateman v. Kramer Lumber Co.

Hoke, J., after stating the case: We have held in many recent decisions that deeds of this character by correct interpretation convey to the grantees an estate in fee in the timber, *251 determinable as to all of the timber not cut and removed within the stipulated period, Hornthal v. Howcott, ante, 228; Midyette v. Grubbs, 145 N. C., 85; Mining Co. v. Cotton Mills, 143 N. C., 308; Lumber Co. v. Corey, 140 N. C., 467; Hawkins v. Lumber Co., 139 N. C., 162. It has been held further, that in conveyances and contracts of this kind, considering the general purport of the instrument, the character and extent of the property, and the time allowed and required for the purpose, the provision as to the extension of time, when properly taken advantage of and made available, permits the grantees to both cut and remove, for the period covered by the extension, this being the clear intent of the parties. Lumber Co. v. Smith, 150 N. C., 253. There was error, therefore, in the ruling of the court below, “that the extension claim of this contract gave only the right to remove, but not to cut, after the two years had expired.” We are of opinion, however, that the results of the trial should not be disturbed on this account, for the reason that in no aspect of the evidence has the defendant shown any right to avail itself of the stipulation as to the extension of time, and therefore any and all cutting and appropriation of timber, after the two years specified, constituted a wrongful invasion of plaintiff’s rights. The provision in question, conferring as it does a privilege, and unilateral in its obligation, partakes to some extent of the nature of an option, in which time is ordinarily of the essence, and the accepted doctrine in reference to this and other instruments containing the same and similar language is that they should be strictly construed. Product Co. v. Dunn, 142 N. C., 471; Alston v. Connell, 140 N. C., 485; Estes v. Furlong, 59 Ill., 298; Dyer v. Duffy, 39 W. Va., 148; Mason v. Payne, 47 Mo., 517; 21 A. and E. (2d Ed.), 931. In this last citation it is said: “There is, moreover, a strong inclination on the part of the courts to view any delay with great strictness, on the ground that the party seeking to enforce performance was not bound, while the other party was bound.” In the case of Estes v. Furlong, supra, the Court recognizes the general proposition that “when a contract is in anywise unilateral, the Court will regard any delay on the part of the purchaser with especial strictness,” etc. Applying the *252 principle, we are of opinion, and so bold, that tbe stipulation in tbis instrument, “Tbat the parties shall have two years in which to cut and remove the timber, and in the event they do not get it all off in that time, they shall have one year’s time thereafter in which to remove the same, by paying to the party of the first part interest on the purchase money for said extension of time,” by correct interpretation requires that on or before the expiration of the specified period of two years the grantees claiming the privilege should notify the owner of the property and tender the stipulated amount. We have held in a case at the present term, Hornthal v. Howcott, supra, that when the estate in this timber determines, certainly in the absence of clear and express provision to the contrary, it does so in favor of the owner of the land, Associate Justice Allen succinctly stating the principle as follows: “The defendants in this ease are grantees of the premises, under a deed from plaintiffs, and we conclude that the legal effect of that deed is to convey to the defendants the land and all the timber thereon not cut and removed by the Roper Lumber Company within four years from the date of the deed.” In the present case there is no evidence which shows or tends to show that any tender of this interest was ever made to plaintiff, who was owner of the land when the period of two years expired, and had been for more than six months. There is no evidence which shows or tends to show that any tender was ever made to Enoch Bateman, plaintiff’s grantor, prior to the execution of the deed to plaintiff or prior to its due and proper registration in August, 1908. We incline to the opinion that there is no testimony, deserving of serious consideration, that any tender of this interest was ever made to Enoch Bateman, himself, until some time after the two years had expired, and such a tender, by authority, would be too late even if Enoch Bateman had been the proper person. Product Co. v. Dunn, supra. True, Mr. C. E. Kramer, an officer of defendant company, when he first testified to this point, stated that he had authorized such a tender through D. P. White, a foreman, a few days prior to 1 October, 1898, the date when the specified time expired, but when shown the check which, it was claimed, constituted the tender, he very properly requested to be allowed to *253 take tbe stand again to say that he was mistaken about the time of the tender, and that it was on 15 October, two weeks after the. time had expired. It appears, also, that a witness by the name of R. A. Jennings had testified that the check had been offered on 18 September, but in the light of the date of the check and the admissions of C. E. Kramer as to the date, it is evident that this witness too was mistaken; but, without deciding whether there was any testimony of a tender to any one, prior to 1 October, there is, as stated, no claim or evidence tending to show that any tender was ever made to J. E. Bateman, plaintiff and then owner of the property. The entire testimony relevant to the inquiry was before the court, and while there was error in the charge, as stated, it being perfectly apparent that in no aspect of it is there any defense available, our decisions are to the effect that in such case a new trial should not be granted. Cherry v. Canal Co., 140 N. C., 422, 426. In that case the Court quotes, with approval, from 2 A. and E. Pl. and Pr., p. 500, as follows: “This system of appeals is founded on public policy, and appellate courts will not encourage litigation by reversing judgments for technical, formal, or other objections which the record shows could not have prejudiced appellant’s rights,” and citing Butts' v. Screws, 95 N. C., 215; Ratliff v. Huntly, 27 N. C., 545; Fry v. Bank, 75 Ala., 473, in support of the principle as stated. We find no reversible error in the record, and the judgment of the court below is affirmed. No error. Walker, J., concurs in result.