132 Mich. 356 | Mich. | 1903
On the 1st day of August, 1899, plaintiff’s testator and defendant entered into a written contract, whereby, -for the sum of $2,000, then paid, defendant purchased from said plaintiff’s testator “all of .the cedar timber now standing, lying, or being on ” certain .lands, described by their sectional location, and as “being the same land which first party [Small] is lumbering for the Cleveland Sawmill & Lumber Company.” Said contract contained this provision:
“It is expressly understood and agreed by and between the parties hereto that said cedar timber shall not be cut -on said land ahead of the pine timber, which is now being ■cut by first party [plaintiff’s testator] thereon, and that said timber shall be cut before August 20, 1900, and that all timber left standing at that time shall revert to said first party.”
Plaintiff’s testator had purchased this standing cedar on ■the 31st day of July, 1899, for the sum of $600, from said
The only question which we think necessary to consider is whether or not the cedar standing on said land August 20, 1900, ceased to be defendant’s property, though the pine timber thereon was not yet cut. It is manifest that the contract intended to transfer to defendant the title to all the cedar standing and lying on the land. While it required him to cut the same before the 20th of August, 1900, it prohibited that cutting ahead of the pine timber,
It is said that defendant should get no benefit from this construction, because the evidence shows that he did not regard the prohibition, but cut cedar ahead of the pine. It is a sufficient answer to this contention to say that plaintiff’s right to insist upon a forfeiture must rest entirely upon the contract. No departure from the contract would enlarge that right, or give an additional right. The construction of the contract, then, and not conduct violating it, will determine whether or not defendant has forfeited his cedar.
It remains to be determined whether the cedar uncut August 20, 1900, and not standing among pine timber, reverted to the estate of plaintiff’s testator. It is obvious that defendant was not prevented from cutting this cedar by the failure of plaintiff’s testator to remove the pine. It is, however, to be borne in mind that stipulations for forfeiture are not favored, and are to be strictly construed. Ortmann v. Bank, 49 Mich. 56 (12 N. W. 907); Sherlock v. Thayer, 4 Mich., at page 359 (66 Am. Dec. 539); Wilcox v. Allen, 36 Mich., at page 169; Miller v. Havens, 51 Mich., at page 485 (16 N. W. 865). It is altogether equitable that this principle should apply to this case, where the estate represented by plaintiff seeks to recover $4,500 for property which cost it only $600, and for which it has already received $2,000. It is impossible to find, in the agreement upon which the rights of the parties are based, any intent that there should be several forfeitures of this timber. Nothing in the contract indi
Judgment will be reversed, and a new trial ordered.