Pope v. Goethe

• Decision Date: 28 March 1935
• Docket Number: 14031.
• Citation: 179 S.E. 319,175 S.C. 394
• Parties: POPE v. GOETHE et al.
• Court: South Carolina Supreme Court

179 S.E. 319

175 S.C. 394

POPE v. GOETHE et al.

No. 14031.

Supreme Court of South Carolina

March 28, 1935

Appeal from Common Pleas Circuit Court of Hampton County; J. Henry Johnson, Judge.

Action by M. P. Pope against Michel Goethe and others. From a decree dissolving a temporary injunction, denying the relief sought and dismissing the complaint, plaintiff appeals.

Affirmed.

Searson & Searson, of Allendale, for appellant.

Randolph Murdaugh, of Hampton, for respondents.

G DEWEY OXNER, Acting Associate Justice.

This action was instituted by M. P. Pope, plaintiff, against Michel Goethe and Ginn Products & Milling Company, a partnership composed of W. N. Ginn and the estate of E. R Ginn, defendants, in January, 1933, wherein the plaintiff sought an injunction, restraining the defendants from trespassing upon a certain tract of land described in the complaint, and from interfering with or removing any of the timber or trees from said property. A temporary restraining order was issued at the time of the commencement of the action. It was tried before his honor, Judge Johnson, at the June, 1933, term, without a jury, who, after hearing the testimony, passed a decree, dissolving the temporary injunction, denying the relief sought, and dismissing the complaint. From this decree, within due time, plaintiff appealed upon exceptions which will hereinafter be considered.

On November 10, 1928, the defendant Goethe executed and delivered to the plaintiff a certain instrument in writing wherein and whereby there was conveyed unto the plaintiff all timber and trees down to a certain size, on the tract of land described in the complaint, for a period of four years from the date of said instrument; and, among other provisions therein contained, was one reading as follows: "And I do further covenant and agree that the said M. P. Pope, his legal representatives or assigns, shall have the right to renew this lease, together with all of its rights and privileges for a period of one year upon payment to grantor of the sum of Three Hundred and Fifty ($350.00) Dollars, payable in advance; provided, this provision can only be exercised by the said M. P. Pope, his legal representatives or assigns, upon written notice to the grantor given ninety (90) days prior to the expiration of this lease."

This lease was duly recorded in the office of the clerk of court for Hampton county on December 12, 1928.

This controversy arises over the attempted exercise by the plaintiff Pope of the privilege granted in said renewal clause. The facts with reference thereto, as found by the circuit judge and fully sustained by the testimony, are as follows:

"In May, 1932, plaintiff called upon the defendant Goethe and sought to induce him to reduce the amount of the consideration provided to be paid in the event that the privilege for one year's extension should be exercised. Goethe told him that he would write him shortly just what he would do in respect to his request. In a few days thereafter, May 28, 1932, Goethe wrote Pope" the following letter: "After giving our conversation due consideration regarding the timber lease, I will do this, Mr. Pope. If you will send me a check for $250.00 within 10 days I will be glad to renew your lease for one year as you requested. Under normal times I would not have charged you one cent. But I have lost about everything I have made in the past 20 years and I need money now more than I ever did in my life. If you are interested in this proposition Mr. Pope, and will mail me ck. within 10 days from this date and renewal lease I will sign and return you promptly."

On May 30, 1932, Pope replied to this letter as follows: "I have your letter regarding the extension on the timber lease on your place. I am sorry that you put the price so high for I had hoped that you would not charge me for the extension asked. I feel that as you sold this timber when it was high and you were paid in full for it in cash, that having had the entire and free use of all the money all the time that as timber is so low and timber hard to sell you would not mind extending the time of cutting a year. Of course it's up to you but in like cases I have extended time without cost to parties who were caught in lots less hard places than I am in this case. I'm writing to ask that you reconsider and certainly make the consideration not over $100.00."

To this letter was the following postscript: "Or a 2 year extension for $200.00.""

To this letter Goethe did not reply.

"In the late spring or early summer of 1932, Newsom also approached Goethe in behalf of Pope and tried to get Goethe to grant the extension without consideration, and it further appears from the testimony of Harvey, the man to whom Pope had leased the turpentine rights, that as late as June or July, 1932, he asked Pope if he was aware of the ninety day clause in the contract, and Pope advised him that he was and further advised him that he had not taken advantage of the option. That in the latter part of October or early part of November, 1932, Goethe also informed him that Pope had not exercised his option under the contract.

That nothing further, whatsoever, was done by Pope until the afternoon of the 10th of November, 1932, when Pope called upon Goethe and at that time after some conversation Goethe informed Pope that, as he had failed to give him notice in writing ninety days prior to the expiration of the four year period, he had no further rights in the premises; and Pope returned that night about ten o'clock and made a tender of Three Hundred Fifty ($350.00) Dollars to Goethe which the latter refused.

The testimony further shows that thereafter in the latter part of November, 1932, Goethe approached Ginn and asked him if he was interested in the purchase of the timber on the property in question and negotiations were had which led up to the purchase by Ginn Products & Milling Company of said timber the sale being consummated on the 15th day of December, 1932, when Goethe conveyed same to Ginn Products &...