82 S.E. 431 | S.C. | 1914
July 17, 1914. The opinion of the Court was delivered by The appellant, in his argument, states:
"The principal question at issue in this case and the only question involved in this appeal, is the construction of that portion of a certain contract entered into between William J. Keenan and George C. Clark."
The exceptions allege error on the part of the presiding Judge in concluding that it was necessary for the timber to have been sold within five years from the date of the contract in order for Keenan to be entitled to the five per cent."
Judge Wilson's decree is as follows:
"The issue in controversy arises under the following provision in a bilateral contract executed on the 22d day of October, 1902, by the deceased, George C. Clark, and the plaintiff, William J. Keenan:
`It is further agreed that the said party of the first part is not to cut, saw, hew or sell any live pine timber now on the said tract first above described for the term of five years from the date of these presents, except with the approval and consent in writing of the said party of the second part, and when sold or delivered, the said party of the first part hereby further agrees to allow the said party of the second part a commission of five percent, on all lumber or timber sold from the said tract of two thousand and twenty-nine acres of land above described.' *233
"The question was fully argued before me by the attorneys for both sides, the pleadings, the contract and the mortgage executed by the said George C. Clark to the said William J. Keenan, of even date with the said contract in question were submitted to me during the argument."
"My construction of the portion of the contract above quoted is, the party of the first part thereto was not to cut, saw, hew or sell any live pine timber on the tract of land at the time of the execution of the contract for a period of five years from the date of the contract without the approval and consent in writing of the party of the second part, and if the party of the second part consented to said sale, or any timber was sawed, hewed or cut within the five years, by the party of the first part, with the approval and consent in writing of the party of the first (i. e., second?) part, then the party of the first part should allow the party of the second part a commission of five per cent, on all lumber or timber sold or cut from the said tract of land."
"Under the testimony it appears that the timber in question was sold more than ten years after the execution of the contract in question."
"Therefore, my conclusion is that the plaintiff is not entitled to a commission of five per cent, on the amount realized from the sale of the timber in question."
This decree is entirely satisfactory to this Court and is affirmed for the reasons therein stated. *234
