Gotham v. Wachsmuth Lumber Co.

Yinje, J. Did tbe trial court err in bolding that defendant bad tbe right, June 11, 1912, to extend tbe time for tbe removal of tbe timber to June 1, 1913, by tbe payment of $50 ? Plaintiffs claim tbe right to extend was an option, and that, unless it was exercised within tbe time limited, it was waived, and cite Bateman v. Kramer L. Co. 154 N. C. 248, 70 S. E. 474; Powers v. Angola L. Co. 154 N. C. 405, 70 S. E. 629; and Norfolk L. Co. v. Smith, 150 N. C. 253, 63 S. E. 954, as particularly applicable. Tbe wording of tbe options in tbe North Carolina cases differs materially from that wbicb we have before us, and tbe facts and circumstances under wbicb removal was sought vary, so tbe cases are not helpful. This option does not provide within what time it must be exercised, nor when tbe $50 per year shall be paid. Neither is it a mere naked option, for it is coupled with tbe duty on tbe part of tbe defendant to pay taxes on tbe lands till it gives tbe required notice to be relieved therefrom. So it cannot be said from tbe whole agreement that a definite time for tbe exercise of tbe option is expressed therein. Time of payment was not made tbe essence of tbe contract by its terms, nor did tbe parties so treat it, for in 1910 tbe payment was not made till October, and in 1911 it was made in May. Tbe [445] right to remove the timber expired June 1, 1912, and in the absence of a provision in the agreement for a specific time within which the option to extend should be exercised and the money paid, it is sufficient if it be exercised within a reasonable time after the right to remove expires. Western L. & C. Co. v. Copper River L. Co. 138 Wis. 404, 414, 120 N. W. 277. The court found that an exercise of it within eleven days was within a reasonable time. We concur in that result. By the Gourt. — Judgment affirmed.