Lumber Co. v. . Whitley , 163 N.C. 47 ( 1913 )

This action was brought to compel the defendant to execute a deed for the renewal of a timber contract, which had expired.

On 2 January, 1905, William J. Cutlar, being the owner of a tract of land, conveyed to the plaintiff the timber thereon, with the privilege of cutting and removing the same within seven years from the date of the deed, that is, on or before 2 January, 1912. There was a clause for the extension of the time, at the option of plaintiff, for the term of three years, provided notice of the intention to extend it should be given to vendor or his assigns before the expiration of the seven years fixed by the original contract for cutting and removing the timber. Notice was not given until 5 January, 1912, or three days after the last day allowed for giving it. Plaintiff alleges that he was excused from a strict compliance with the contract, because defendant had left Beaufort County, the place of his former residence, in November, 1911, and he could not find him to serve the notice. The defendant went to Rocky Mount, N.C. and made a short visit to Florence, S.C., returning to Rocky Mount about the middle of December, 1912. Horton Cutlar, agent of plaintiff, having charge of the matter, had a deed of extension prepared for execution by defendant, and afterwards, in November, 1912, met the defendant, on a Sunday, but said nothing to him about executing the deed. On 15 December, 1912, this agent was told by defendant's brother, B.H. Shepherd, that defendant was in Rocky Mount, but it does not appear that any steps were taken to have the contract (49) renewed or the time for cutting the timber extended. There was other evidence in the case. The jury returned the following verdict:

1. Was the plaintiff ready, able, and willing to pay the defendant the sum provided in the contract introduced in evidence for the extension of time in which to cut said timber, on 2 January, 1912. Answer: Yes.

2. If so, was plaintiff's failure to do so, until 5 January, 1912, due to its inability to find the defendant, after using due diligence? Answer: No.

The judge charged the jury fully as to what, in law, was due diligence, and left it to the jury as an open question of fact to decide, upon the issues, whether the plaintiff had exercised proper care and diligence, under the circumstances. Plaintiff appealed from the judgment upon the verdict. After stating the case: There can be no doubt now that the plaintiff, in order to avail itself of the privilege to extend the time of cutting, must have given notice and made a proper tender of the consideration therefor before the expiration of the first period allowed for cutting and removing the timber, and this is recently so decided inRountree v. Cohn-Bock Co., 158 N.C. 153. See Bateman v. LumberCo., 154 N.C. 248; Powers v. Lumber Co., ibid., 405; Product Co. v.Dunn, 142 N.C. 471. A unilateral contract of this kind, binding the owner of the land without any corresponding or correlative obligation or duty of the other party to him, and regarded in its essence as a mere option, is strictly construed, and exact compliance will be required.Alston v. Connell, 140 N.C. 486. The only question, therefore, is whether there has been such compliance. The court instructed the jury correctly as to what constituted due diligence, and the jury have found, upon the evidence, that there was not such diligence, and we think the verdict was the only one the jury could well have rendered in the face of the facts and circumstances. The plaintiff not only (50) failed to show due diligence, but the evidence rather tended to prove the contrary. It is singular that the plaintiff should have been so remiss in caring for its interests, if it really intended to renew the contract for the extended period. Placing the money in the hands of the sheriff, with instructions to deliver it to defendant, does not alter the case, and was not, in itself, diligence as matter of law. The judge allowed it to be considered by the jury as a circumstance on the question of due diligence. There is nothing in the case, we thiak [think], but a pure question of fact, which the jury have settled against the plaintiff.

No error.