111 Ga. 130 | Ga. | 1900
On October 28, 1895, Fletcher leased the timber on three certain lots of land to Clyatt, for turpentine piurposes, for the term of three years from the date of cutting the boxes. The lease fixed the price of the timber at $1.50 per acre, and expressly stipulated that the “timber ivas to be paid for before boxing.” The record discloses that when Clyatt got ready to box the timber and had in fact commenced boxing, Fletcher appeared and stopped him because he had not paid for the timber. Subsequently Fletcher leased the same timber to Barbour Brothers & Company, who commenced boxing the timber. Clyatt filed an equitable petition against Fletcher and
As has been showu, the evidence as to the tender of the price of the timber was conflicting. The lease was of the timber on three lots, without any special mention of the lot which was in litigation. There was an express stipulation that the timber should be paid for before the boxing began. This was made a condition precedent by the agreement of the parties. The estate therefore did not vest in Clyatt until the whole-price was paid or tendered. Civil Code, § 3137. If Fletcher’s contention be true, that he had never agreed to receive a certificate of deposit in lieu of the money, a tender of such certificate would not be a compliance with the condition. The money itself should have been tendered or paid. Clyatt, not having paid for the timber or made a proper tender of payment, had no such title as would authorize a court of equity to grant an injunction without proof of insolvency or irreparable damage. There is no allegation in the petition that the damages are irreparable; on the contrary they
Judgment affirmed.