Elvington v. Waccamaw Shingle Co

• Decision Date: 01 April 1925
• Docket Number: (No. 282.)
• Citation: 127 S.E. 241
• Parties: ELVINGTON . v. WACCAMAW SHINGLE CO. et al.
• Court: North Carolina Supreme Court

127 S.E. 241

(189 N.C. 366)

ELVINGTON .

v.WACCAMAW SHINGLE CO. et al.

(No. 282.)

Supreme Court of North Carolina.

April 1, 1925.

Appeal from Superior Court, Brunswick County; Grady, Judge.

Suit by Volney Elvington against the Waccamaw Shingle Company and others. From a judgment refusing a permanent restraining order, plaintiff appeals. Reversed.

E. H. Smith and Robt. W. Davis, both of Southport, for appellant.

C. Ed. Taylor, of Southport, and John D. Bellamy & Son, of Wilmington, for appellees.

CLARKSON, J. This was an action to perpetually restrain defendants from cutting timber on a tract of land. The timber rights were purchased by defendants from W. C. Manning, trustee. Manning, trustee, purchased from the plaintiff. The plaintiff alleged that the defendants' contract had expired on May 7, 1922. The defendants were temporarily restrained until the hearing. The contract was dated May 7, 1912, and gave the grantee, W. C. Manning, trustee, and his assigns 10 years from said date to cut and remove the timber, and this clause of the extension was inserted in the contract:

"And should the said W. C. Manning, trustee, his heirs, successors or assigns fail to cut and remove the said timber herein conveyed during the said term of 10 years, then said W. C. Manning, trustee, his heirs, successors or assigns shall have an additional term of 5 years, or so much thereof as he or they may desire from the date of the expiration of this deed by paying annually to said V. Elvington, his heirs or assigns, 6 per cent. of the purchase money herein mentioned."

The admitted facts, as found by the court below, are as follows:

"And the plaintiff having introduced in evidence the original contract of sale of timber by plaintiff to defendants' vendor, recorded in Book 18. page 54, bearing date of May 7, 1912, and it being admitted that the defendants made legal tender of the sum of money required in the contract for extension privilege on May 10, 1922, and that defendants did not give notice that they would avail themselves of the extension prior to May 10. 1922, and it further being admitted that there was no cutting of the timber by defendants on said lands between May 7 and May 10, 1922, and the court being of the opinion, finds that the tender of $126 on May 10, 1922, by defendants was within the proper time under the contract to gain an extension privilege, and that the refusal to extend the cutting privilege by plaintiff was wrongful and unlawful."

From the judgment of the court below, plaintiff duly excepted and appealed to the Supreme Court.

The contention of plaintiff is;

"The correct interpretation of the contract requires that on or before the expiration of the period of 10 years the grantees claiming the privilege should notify the owner of the property and tender the stipulated amount. The plaintiff, appellant, was bound, if proper notice or tender had been made on or before May 7, 1922, to extend the time in accordance with the contract, while the defendants, appellees, were not bound to avail themselves of the extension privilege."

The plaintiff relies on Bateman v. Lumber Co., 154 N. C. 248, 70 S. E. 474, 34 L. R. A. (N. S.) 615, and we think it decisive of this...