148 Mich. 336 | Mich. | 1907
December 20, 1899, complainant en
That part of the decree dismissing complainant’s bill is clearly correct, for complainant did not make a case entitling him to relief. He did not make a case, as he contends, upon the ground that he was fraudulently induced to enter into the contract of sale, because his testimony fails to prove fraud. He did not make a case upon the ground alleged in his bill, that defendant was threatening to remove timber not embraced in the contract, for the testimony proves that there was no such threat nor intent. Nor was he entitled to relief, as he contends, up
The serious question in the case arises from the relief granted defendant on his cross-bill. Did the oral agreement to extend the time for removing this timber operate as a waiver of complainant’s right to forfeit the same ? Complainant insists that it did not. He insists that, as standing timber is a part of the land and cannot be sold except by a writing signed by the owner (section 9509, 3 Comp. Laws), the right to forfeit said timber can be waived only by a writing signed by the owner. It is undoubtedly true that one can sell standing timber only by a conveyance in writing (Russell v. Myers, 32 Mich. 522), but I think it also true that his right to forfeit the same for nonremoval may be legally waived by parol. This latter rule is, I think, to be deduced from Green v. Bennett, 23 Mich. 464. There this court held that the condition that the vendee of standing wood and timber should remove them within a stated time—
“Was one which the vendor might waive; and, by claiming and receiving from the purchaser the damages for the failure to remove them in time, he clearly waived the condition, and left the wood and timber as the property of the purchaser, to be removed within a reasonable time.”
See, also, opinion of Chief Justice Campbell in Williams v. Flood, 63 Mich. 487.
I think, therefore, that complainant waived the right to forfeit the timber for nonremoval, and that the decree complained of was properly made. That decree is affirmed.