Weaver Bros. Lumber Corporation v. Beasley

• Decision Date: 02 November 1934
• Docket Number: 4858
• Citation: 157 So. 282
• Court: Court of Appeal of Louisiana — District of US
• Parties: WEAVER BROS. LUMBER CORPORATION v. BEASLEY

157 So. 282

WEAVER BROS. LUMBER CORPORATION v. BEASLEY

No. 4858

Court of Appeal of Louisiana, Second Circuit.

November 2, 1934

Phanor Breazeale, of Natchitoches, and Cook & Cook, of Shreveport for appellant.

Rusca &amp Cunningham, of Natchitoches, for appellee.

OPINION

MILLS Judge.

Weaver Bros. Lumber Corporation brings this suit against Henry N Beasley to compel the extension of time of a contract to cut and remove the timber from certain land of defendant. It claims this right under a timber deed dated August 10, 1925, which contains this clause:

"It being understood and agreed that all of the timber herein conveyed shall be removed within five years from the date hereof. However, should anything prevent the purchasers from removing this timber within the five years, it is understood and agreed that the purchasers shall have an additional time for removing this timber by paying the seller Fifty Dollars ($ 50.00) per year until the timber has been removed, the additional time not to exceed a period of five years. The purchasers are also granted a right of way over and across said lands for transportation to its mill or tram of any and all timber that it now owns or may acquire."

The five-year period extended to August 10, 1930. In June, 1930, plaintiff paid defendant $ 50 for a one-year extension. It did likewise in July, 1931 and 1932. All these payments and renewals were made before the expiration of the preceding period. In 1933, payment for another year's extension from August 10 of that year was not tendered until September 17, after the expiration of the preceding extended period. This tender was refused by defendant as coming too late, he taking the position that the contract not having been extended beyond and before that time, it expired by its own terms on August 10, 1933; and that the ownership of the uncut timber reverted to him. He also contends that plaintiff, even if in time with its tender, is only entitled as of right to an extension after a showing that something has prevented the purchaser from removing the timber. No such showing is made.

Plaintiff is appealing from a judgment of the lower court rejecting its demands.

We will dispose of the second defense first in order to clear the way for the real issue. The timber deed provides that "should anything prevent the purchasers from removing this timber within the five years it is understood and agreed that the purchasers shall have an additional...