Eureka Lumber Co. v. Whitley

79 S.E. 268, 163 N.C. 47, 1913 N.C. LEXIS 115

Opinion

Waleer, J.,

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 in Rountree v. Cohn-Bock Co., 158 N. C., 153. See Bateman v. Lumber Co., 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 tbe face of tbe facts and circumstances. Tbe plaintiff not only failed to show due diligence, but tbe evidence rather, tended to prove tbe contrary. It is singular that tbe plaintiff should have been so remiss in caring for its interests, if it really intended to renew tbe contract for tbe extended period. Placing, tbe money in tbe bands 'of tbe sheriff, with instructions to deliver it to defendant, does not alter tbe case, and was not, in itself, diligence as matter of law. Tbe judge allowed it to be considered by tbe jury as a circumstance on tbe question of due diligence. There is nothing in tbe case, we think, but a pure question of fact, which tbe jury have settled against tbe plaintiff.

No error.