138 P. 775 | Mont. | 1914
delivered the opinion of the court.
On July 17, 1905, the parties to this suit entered into a contract wherein the respondents, for a valuable consideration, sold to the appellant all the timber growing upon a certain tract of land situated in Missoula county, upon the condition that the timber be cut and removed on or before July 17, 1910. In the fore part of May, 1910, the appellant, having done nothing toward cutting or removing the timber, and realizing that the contract would soon expire, requested one Fairbanks to see Mr. Arnold and ascertain from him upon what terms an extension for one year could be procured. Fairbanks saw Arnold, who said he would grant such extension for $500, adding'that he was anxious to have the land cleared up, that he would rather have the timber taken off than to have the money, and that “to run over a month or two over the present year there would be no extra charge.” Fairbanks wrote at once to the appellant, advising him to see Arnold. Between June 4th and 8th, appellant went to Plains to see Arnold, but failed to do so,' learning that Arnold was at St. Regis. ' Upon June 27th the appellant sent his bookkeeper, Mr. Keith, to Plains to get Mr. Burleigh to go to Arnold and get an extension. Keith went to
The foregoing facts, constituting the substance of all the evidence in the ease, were presented under an amended complaint which declared upon two causes of action, viz.: (a) To quiet appellant’s title as owner of the timber; and (b) to compel respondents to “execute a sufficient grant” to the appellant of the right to enter the premises and cut and remove the timber. Issue was joined by the answer, which denied the essential allega
The appellant, conceding that under the decision of this court in Hollensteiner v. Missoula Lumber Co., 37 Mont. 278, 96 Pac. 420, no right remained in him to cut the timber left when the contract of July 17, 1905, expired, makes the following contentions: (1) That the evidence discloses an enforceable oral contract between the parties for a year’s extension; and (2) assuming that no such contract was made, the rule of Hollensteiner v. Lumber Co. works a forfeiture which should not be enforced in this case, in view of the equities disclosed by the record. Of these in their order.
1. It is impossible to extract anything more from the conduct
2. Assuming that the application to this case of the rule of Hollensteiner v. Lumber Co. involves a loss in the nature of a
The respondents vigorously and with some reason contest the sufficiency of the pleadings as a basis for relief from for-' feiture. But, passing that, we are without warrant for such relief in the facts established on the trial. The appellant, holding a five-year contract, the expiration of which he must have known would leave him without any right, waited four years and ten months before taking any action, either toward removing the timber or toward securing an extension. About sixty days before the end, he authorized an agent to negotiate for terms of an extension. At that time he could have removed the timber by going to some extra expense. The agent sent to negotiate for terms of extension secured an offer which he communicated to the appellant without delay, and the appellant could by a prompt acceptance of the offer have settled the matter beyond question. Presumed to know that the law afforded the privilege to Arnold to revoke his offer at any time before notice of acceptance, the appellant nevertheless delayed even his subjective acceptance until within a few days of the end of the contract, and then through his agent failed to communicate that acceptance before the offer was revoked. In explanation it is suggested that Arnold’s statements that he would rather have the timber taken off than have the money, and that “to run over a month or two over the present year there would be no extra charge,” lulled the appellant into a false security. Whether these statements, if communicated to the appellant, would have justified his course we do not determine, because the appellant does not prove that he ever heard of them or that they ever misled or influenced him in any way. The only rational inference is to the contrary. It is true that he says, “I relied absolutely on anything Mr. Arnold said to Mr. Fairbanks and anything Mr. Fairbanks would say to me”; but he could not rely on anything said to Fairbanks unless Fairbanks communicated it to him, and the only communication from Fairbanks to him was the letter sent immediately after Fairbanks had talked
The order of nonsuit was correct, and the judgment founded thereon is affirmed.
Affirmed.