Cromartie v. Virginia-Carolina Lumber Co.

Per Curiam. The plaintiff sold his timber at the price of $1.50 per thousand feet and received therefor $4,500, the timber being estimated to be 3,000,000 feet. It turns out, according to the report of the referee, that there were only 1,500,000 feet of the timber, and the plaintiff has therefore, been paid $2,250 more than the contract price. In addition to this, he seeks to recover the value of the timber again upon the ground that as the timber was not cut within the first five-year period, and as the extension money was not paid or tendered at the time provided for in the extension deed, the timber belonged to him as owner of the land when it was cut and removed. His Honor finds as a fact that the extension money -was not paid or tendered because the defendant was led to believe by the conduct of tire plaintiff that it would not be exacted, and denied relief to the plaint iff except as to the extension money, and in this there is no error of which the plaintiff can complain. *715 In 16 Oye., 805, it is said: “While waiver is not in the proper sense of the term a species of estoppel, yet where a party to a transaction induces another to act upon the reasonable belief that he had waived or will waive certain rights, remedies, or objections which he is entitled to assert, he will be estopped to insist upon such rights, remedies, or objections to the prejudice of one misled”; and in Lumber Co. v. Price, 144 N. C., 54: “A right can only be forfeited by such conduct as would make it fraudulent and against conscience to assert it. If one acts in such a manner as intentionally to make another believe that he has no right, or has abandoned it, and the other, trusting to that belief, does an act which he would otherwise not have done, the fraudulent party will be restrained from asserting his right.” It is true, there is no consideration for the promise on the part of the plaintiff not to enforce payment of the extension money, and for this reason he can recover if as provided in the judgment; but he had the right, without consideration, to surrender his right of recovery to the defendant, and having led the defendant to believe he would not collect it, he cannot claim a forfeiture brought about by the failure of the defendant to pay or tender the extension money. Affirmed.