Clyatt v. Barbour Bros.

Simmons, C. J. On October 28, 1895, Fletcher leased the timber on three certain lots of land to Clyatt, for turpentine piurposes, for the term of three years from the date of cutting the boxes. The lease fixed the price of the timber at $1.50 per acre, and expressly stipulated that the “timber ivas to be paid for before boxing.” The record discloses that when Clyatt got ready to box the timber and had in fact commenced boxing, Fletcher appeared and stopped him because he had not paid for the timber. Subsequently Fletcher leased the same timber to Barbour Brothers & Company, who commenced boxing the timber. Clyatt filed an equitable petition against Fletcher and [131] Barbour Brothers & Co., setting up his lease and praying that the defendants be restrained from boxing or cutting the timber. The evidence for the plaintiff tended to show that at the time of the original lease the title to one of the lots was in dispute, and that Fletcher and Clyatt had agreed that the price of the timber on this lot should be deposited in a certain bank to await the termination of the litigation in regard to the lot. The plaintiff’s evidence also tended to show that, subsequently to the lease, this agreement was ratified and renewed,. Fletcher agreeing that the money might be deposited in another bank and agreeing to receive the certificate of deposit in lieu of cash. His evidence further tended to show that, upon the occasion when plaintiff commenced boxing, he tendered Fletcher the price of the timber upon two of the lots and this certificate of deposit of the price of the timber upon the lot to which the title was .in litigation. Fletcher denied having made such an agreement, and insisted that he demanded the cash to be paid into his hands before the boxing should commence. He positively denied making any agreement in regard to any certificate of deposit, and testified that the price of the timber upon the three lots had never been tendered him. This is the substance of the evidence. The judge, after hearing it, refused the injunction, and Clyatt excepted. As has been showu, the evidence as to the tender of the price of the timber was conflicting. The lease was of the timber on three lots, without any special mention of the lot which was in litigation. There was an express stipulation that the timber should be paid for before the boxing began. This was made a condition precedent by the agreement of the parties. The estate therefore did not vest in Clyatt until the whole-price was paid or tendered. Civil Code, § 3137. If Fletcher’s contention be true, that he had never agreed to receive a certificate of deposit in lieu of the money, a tender of such certificate would not be a compliance with the condition. The money itself should have been tendered or paid. Clyatt, not having paid for the timber or made a proper tender of payment, had no such title as would authorize a court of equity to grant an injunction without proof of insolvency or irreparable damage. There is no allegation in the petition that the damages are irreparable; on the contrary they [132] are estimated in dollars and cents at an amount which the petitioner alleges he is ready to prove. The testimony shows that-both Fletcher and Barbour Brothers & Co. are abundantly solvent. Of course we do not intend to express any opinion as to the truth of the contention of either party as to making tender. That will be a matter for the determination of the jury on the final trial. We simply hold that where the evidence is-conflicting and the judge accepts as true that of one party, we-will not control his discretion in so doing. In the present case, taking as true that portion of the evidence which the judge accepted as true, the refusal of the injunction was not improper. Judgment affirmed. All concurring, except Fish, J., absent.