Green v. Bennett

Christiancv, J. There being no bill of exceptions in this case, nor any exceptions taken to the special finding of facts and law by the judge, the only question open for adjudication upon, this writ of error is whether the finding supports the judgment ; and this depends upon the special contract and what was done under it, as set forth in the finding. It is insisted on the part of the defendant in error (plaintiff below), that, by the contract, the sale of the timber was absolute, and that the provisions for taking it off the laud, within the periods fixed, were in the nature of a covenant, and not of a condition. On the other hand it is insisted that these provisions are in the nature of a condition, giving the purchaser the right to take thb wood and [470] timber, only on condition that he should remove them within the specified periods. It is quite unnecessary to determine this question. If the contract is to be construed as making an absolute sale, then the wood and timber remained the property of the purchaser (plaintiff below), though not removed within the times provided; and the taking and removal of the wood by the vendor (defendant below) constituted a wrongful conversion for which the purchaser had a clear right of action; though he would have been liable to the vendor for a breach of the covenant to remove within the times agreed. But if the sale was, by the contract, conditional, and the provisions for the removal within the specified periods in the nature of a condition, instead of a covenant, then the purchaser, if the vendor should insist upon the condition, would lose all right to the wood and timber not removed within the time; and the vendor would have the right to insist upon this breach of the condition, and hold the wood not th us removed; and this would constitute his only security against, and his only remedy for, the failure of the purchaser to perform the condition by removing the wood within the time; for if the provision as to the time of removal constituted a condition to the sale, then it was not a covenant upon which the vendor could bring an action for damages at the same time that he insists upon its forfeiture as a condition, and holds the wood and timber upon that ground. If a condition, it was one which the vendor might waive; and by claiming and receiving from the purchaser the damages for the failure to remove them in time, he clearly waived the condition, and left the wood and timber as the property of the purchaser, to be removed within a reasonable time. In either view of the case, therefore, the’ right of action of the plaintiff below was complete, upon the facts found; and the finding, therefore, supports the judgment. [471] There being no exception to the judge’s finding of law or facts, the question of tbe measure of damages adopted by tbe circuit court is not property before us. Tbe judgment must be affirmed, and tbe defendant in. error must recover bis costs in both courts. The other Justices concurred.