Beaufort County Lumber Co. v. Johnson

The opinion of the Court was delivered by Mr. Chief Justice Gary. *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. Mr. Justice Hydrick concurs in the opinion announced by the Chief Justice.