Opinion
13544
December 29, 1932.
Before SHIPP, J., Florence, February, 1930. Affirmed.
Action by C.E. Graham and others against Hester G. Goforth, the Forester Lumber Company and others. From a decree of the Court of Common Pleas, the last named defendant appeals.
The decree of the Court of Common Pleas, S.W.G. Shipp, Judge, was as follows:
This action arises out of the following state of facts: On June 4, 1926, R.H. Graham, of Scranton, Florence County, S.C. died, leaving a will, which was duly admitted to probate in the office of the Probate Judge of Florence County. The testator left surviving him as his sole heirs nine children, to wit, the plaintiffs C.E. Graham, H.M. Graham, O.H. Graham, H.B. Graham, John Y. Graham, Dessie Z. Graham, Mary J. Graham, and Sarah R. Graham, and the defendant, Mrs. Hester G. Goforth. By Item 2 of his will, he devised to his three daughters his home tract, containing 245 acres, and by Item 4 of the will, he devised the timber on the same tract, in equal proportions, to his nine children.
In December, 1929, eight of the nine children of the testator desired to sell the timber in question to the defendant Forester Lumber Company for $18,000.00, and gave to that company an option for forty-five days to purchase the timber at such price, the option being prepared by the attorney for the lumber company. The consideration of this option was $1,000.00, which was deposited in the First National Bank in Florence, S.C. and which is still held by such bank. This option was signed by the eight Graham children who were willing to sell the timber for this price, but the ninth child, the defendant, Mrs. Goforth, refused to sign it. The testimony clearly discloses that, at the time the option was taken by Forester Lumber Company and throughout the term thereof, the optionee as well as all the other parties to the transaction understood that Mrs. Goforth would not join in the deed and that a Court proceeding would be necessary in order to get a title to the timber and the rights incident to its removal. A deed was prepared by the attorney for the lumber company embodying some of the supposed objections of Mrs. Goforth and this was tendered her for signature, but she refused to execute it, which, as has been stated, all the parties including Forester Lumber Company had reason to believe from the very beginning would be the position she would take. In this situation, the plaintiffs brought this action against Mrs. Goforth, the heir who refused to sign the timber deed, Forester Lumber Company, the company which had accepted the option to purchase the timber, and all of the lienholders having any interest in the timber. The purpose of the action was to partition the timber by a sale thereof to Forester Lumber Company in accordance with the terms of the option, and to enforce specific performance of the accepted option on the part of Forester Lumber Company.
The summons and complaint was duly served on the defendants, and answers were filed by most of them setting up their rights. The defendant, Mrs. Goforth, in her answer alleged that under a proper construction of the will of her father, the timber could not be sold without the assent of all the nine heirs, and that she had a right to have it remain on the land for a period of fifteen years, after which it would become the joint property of her and her two sisters. She also asked for a partition both of the land and of the timber in the present action so as to avoid a multiplicity of suits.
The defendant, Forester Lumber Company, in Paragraph Two of its answer, admitted the execution of the option, which it attached as an exhibit to such answer, and in Paragraph Four of the answer it alleged affirmatively that it was still ready and willing to accept title to the timber, rights of way, etc., set forth in the option, provided the conveyance should be made within a reasonable time.
The case was referred to the master to take and report the testimony to the Court. On the testimony taken and reported by the master pursuant to this order, the case duly came on for hearing before me, at which time the cause was argued fully by counsel for the plaintiffs and for all of the answering defendants.
I shall consider first the construction of the will of R.H. Graham. Item 4 of this will reads as follows: "All of the timber located on the home place, hereinabove referred to, I will, bequeath and devise in equal proportions to my nine children. It is my will and desire that this timber be used by each of my children as they respectively may need same for the upkeep of the improvements owned by them. I desire that said timber be so used for a period not exceeding fifteen years and when sold the proceeds to be equally divided among the nine owners of same. Any timber remaining on said land at expiration of said period is to become the exclusive property of my three daughters, owners of the land upon which same is situated."
The first sentence of this item is an absolute devise of the timber in equal proportions to the nine children. The remainder of the item merely expresses a wish on the part of the testator and does not have the force and effect of destroying the plain devise set out in the first sentence of the item. My construction of the will, therefore, is that it devises the timber absolutely to the nine children. From this, it follows that any of these heirs had a right to apply to the Court for a partition of the timber. Rivers v. Atlantic Coast Lumber Corporation, 81 S.C. 492, 62 S.E., 855.
Item 2 of the will reads thus: "To my three daughters, Hester E. Graham Goforth, Mary J. Graham, and Sarah R. Graham, I give, devise and bequeath my home place, containing two hundred and forty-five (245) acres, more or less. Out of this boundary, by daughter, Mary J. Graham, is to have and receive the tract or parcel of the entire tract which contains the house."
My construction of this provision of the will is that this devise to the three sisters contemplated an equal division among them according to value and not according to acreage. Sanderson v. Bigham, 40 S.C. 501, 19 S.E., 71; Lee v. Montague, 173 N.C. 226, 91 S.E., 834.
These three heirs are clearly entitled to have the land partitioned among them in accordance with this holding, and provision therefor will be made in a subsequent portion of this decree.
The sole remaining question then for disposition is the contention of the defendant, Forester Lumber Company, that it should be relieved from its contract to purchase the timber.
In the argument before me, counsel for this company asserted that time was of the essence of the contract, and that the contract not having been performed within such time, the lumber company is relieved. This contention was based on the fact that by the terms of the option, the optionee was given "the right of option for forty-five days to purchase" the timber on the land, which they argue means that the whole purchase had to be concluded within forty-five days. In making this contention, counsel have completely overlooked the nature and characteristics of an option. Under the authorities, an option is a unilateral contract, supported by a consideration, "by which one party, called optioner, sells to another party, called optionee, the right at the election of the latter to purchase certain described property for the price and upon the terms and conditions of the option contract." James on Option Contracts, § 101.
"The chief and distinguishing characteristics of an option contract to purchase is that it binds the optioner to sell the property, but does not without election obligate the optionee to buy. The thing contracted for and sold is the right of election to purchase. The optioner parts only with the right to sell the property to any other person during the time limited, and the optionee receives only the right of choice whether he will claim performance of the option contract." James on Option Contracts, § 102.
These principles are supported by all of the authorities and are so well settled as to be considered as axiomatic.
Applying them to the instant case, it will be seen that here the optioners, to wit, the eight Graham heirs, who are plaintiffs in the present action, sold to Forester Lumber Company the right to purchase the timber in question within forty-five days. That company had a right to elect to accept the option up until midnight of the forty-fifth day of the option period. James on Option Contracts, §§ 848-850.
But the Forester Lumber Company as the optionee had no authority whatsoever to extend the time of the option in any degree beyond the limit in the option contract. In so far as the option is concerned, the time limit was fixed by the optioners, and by them alone. It is clear from the testimony that, while the option was signed by only eight of the Graham heirs, it was accepted by the optionee, the Forester Lumber Company, before the expiration of the forty-five day period. When this was done, all specified time limits disappeared completely from the case, as by accepting the option to purchase a bilateral contract was entered into between Forester Lumber Company and the optioners, which was binding on both parties. McSwain v. Atlantic Coast Lumber Corp., 96 S.C. 155, 80 S.E., 87; James on Option Contracts, § 871.
It is quite true that, at the time the suit was brought, the option had been signed by only eight of the nine Graham heirs, and the Forester Lumber Company, if it had not otherwise bound itself, might well have taken the position in the beginning that a proper option had not been executed by reason of the lack of the signature of the ninth heir. This, however, it did not do. On the contrary, the evidence shows that it accepted the option within the time limit thereof and actually co-operated with the optioners in the efforts to obtain title from the ninth heir without the necessity of bringing suit. The evidence further shows that it knew all along that, if the efforts to get the ninth heir to sign the deed failed, it would be necessary to go into Court for the purpose of carrying out the sale by means of a partition suit, and in this arrangement it fully acquiesced. After suit was brought, it filed an answer, in the fourth paragraph of which it alleged specifically "that this defendant is still ready and willing to accept a good, valid and sufficient fee simple title to said timber and timber rights, rights of way, privileges and easements as are set forth in the aforesaid option, and to pay the balance of the purchase price named in said option, provided such conveyance can be made and delivered to this defendant within a reasonable time." From this language, it is too clear for argument that the Forester Lumber Company waived any and all defenses it may have set up by reason of the fact that the option had not been signed by all of heirs and clearly and unequivocally accepted the option and agreed to accept title to the timber and the rights incident thereto if the Court could make a proper deed therefor. In the light of this acceptance and election on the part of forester Lumber Company, it cannot now be heard to say that it did not accept the option and is unwilling to carry out the contract if the Court orders the deed to be made. In other words, it is completely estopped by its own answer from taking the position it now attempts to take before the Court.
In this paragraph of the answer, this company based its acceptance on the carrying out of the contract within a reasonable time. Under the evidence in this case, there is no agreement between the parties that the contract had to be performed within a specified time, and from this it follows inevitably that time was not of the essence of the contract as it was agreed on between the parties thereto. This being true, the law itself would imply that the contract for the conveyance of the timber had to be performed within a reasonable time after the defendant Forester Lumber Company accepted the option and thereby became bound. When Forester Lumber Company, the optionee, elected to accept the contract and agreed to take the timber as is conclusively evidenced by its answer in the case, such election could not be withdrawn. James on Option Contracts, § 871.
Since the effect of the election was to bind all parties irretrievably and since the contract so entered into had to be performed within a reasonable time, the sole question that remains is whether it was so performed.
In the answer, the defendant Forester Lumber Company undertook to tell the Court that ninety days was a reasonable time for the Court to perform its functions of carrying out the contract the lumber company had entered into when it accepted the option, as shown by its answer. A Court of equity cannot be bound by any litigant as to when it will perform its functions, as litigants are controlled by decrees of the Court rather than Courts are controlled by attempted limitations on the part of litigants. Hence when Forester Lumber Company undertook to tell the Court that it had to make a decree winding up the case completely within ninety days, its action in this regard was without any effect whatever and does not limit the Court in any particular in performing its function of determining what was a reasonable time to perform this contract. It is the established law of this State that reasonable time for the performance of a contract is an issue to be decided under the facts and circumstances of each case as it arises. Flagler v. Atlantic Coast Lumber Corp., 89 S.C. 328, 71 S.E., 849. McClary v. Atlantic Coast Lumber Corp., 90 S.C. 153, 72 S.E., 145. Minshew v. Atlantic Coast Lumber Corp., 98 S.C. 8, 81 S.E., 1027.
In the argument before me, counsel for the lumber company have taken the position that there was an undue delay on the part of the plaintiffs and those interested with them in bringing the litigation to a conclusion, and that by reason thereof the lumber company should not be held to be relieved from its contract despite the admissions in its answer. The criticisms so directed against counsel representing the plaintiffs and those interested with them are unfounded, as there is no testimony in the record to support them. On the contrary, the record shows that they proceeded with due diligence at all times, and there is no evidence that this particular defendant ever did anything to speed the termination of the case. In addition, there was exhibited to me at the hearing, correspondence between counsel for the plaintiffs and counsel for the lumber company, from which it conclusively appeared that the counsel for the plaintiffs used reasonable efforts more than a year ago to bring this case to a final hearing before me, but without success, and that counsel for the lumber company at that time, and ever since, have shown practically no interest in carrying the case forward. Under the law, when the suit was brought, it was just as much the duty of the defendant Forester Lumber Company to speed the case to a final hearing as it was the duty of any other party to the suit, and its counsel will not be heard to say that the delay was due to other counsel in the case. The Courts were open to the counsel for the lumber company to have brought the case to a conclusion if they had seen fit to do so, and their inaction in this respect cannot be excused on the ground that other parties to the case were not diligent, even if such had been the case.
I therefore conclude, as a matter of law, that the defendant Forester Lumber Company has elected to accept the option to purchase the timber in question, and that it is bound by the contract so entered into.
Counsel for the lumber company, however, take the further position that it should be relieved from its obligation to carry out its contract because the price of timber had declined, and, such being the case, the Court should not decree specific performance against it. In view of the fact, as has already been found, that counsel for the lumber company have never taken any steps to bring this case to a final conclusion, which could have been accomplished more than a year ago, it would seem that they are not in position to raise the question that they now present. Waiving this, however, the Court is clearly of the opinion that the position taken is without merit. The timber sold to the lumber company is still on the ground and is still of the same character and utility and marketability as when it was sold. It has not deteriorated or depreciated in any manner whatever. The case of Hammassapoulo v. Hammassapoulo, 134 S.C. 54, 131 S.E., 319, expressly holds that depreciation in the value of property is no defense in an action against the purchaser for specific performance of his contract.
In addition to this, the same case distinctly holds that, where a purchaser is aware of defects in a title, that must be cleared up by judicial action, and concurs in the proceedings taken to perfect the title, which are the precise facts in the case at bar, he cannot complain if title is not tendered to him within the time expressed in the contract. If it be true, where there is a time limit in the contract, a fortiori it must be true where the parties did not see fit to express a definite time limit and thereby make time of the essence of the contract but left the performance to be carried out within a reasonable time.
After giving full consideration to the entire case and to all the contentions made by the defendant lumber company, I am clearly of the opinion that its positions are untenable and that no excuse has been presented on which a Court of equity should relieve it from its contract to purchase the timber involved in the litigation.
I find from the evidence that the contract of sale for the timber at the price of $18,000.00 is fair and equitable to all the contestants interested in the timber, and that the partition of such timber should be made by decreeing that the contract of sale with Forester Lumber Company be carried out and that the proceeds of such sale be distributed among the heirs.
It is the settled law of this State that in a suit for specific performance, the fact that the title to the property is incumbered is no defense to the action if at the time of the decree plaintiff is able to remove the incumbrance or other objection to the validity of the title. Lesesne v. Witte, 5 S.C. 450.
All parties having liens on the timber which is the subject-matter of the action are parties to the suit, and the Court is therefore in position to make a decree conveying a good and marketable title to Forester Lumber Company for the timber and easements it has elected to purchase under the terms of the option and transferring the claims of any lienholders or others interested to the purchase money to be paid therefor.
It is therefore ordered, adjudged, and decreed that the defendant Forester Lumber Company is bound to accept a deed for the timber and easements it has agreed to purchase from the nine heirs of R.H. Graham, and to pay therefor the sum of $18,000.00 in accordance with its agreement.
It is further ordered, adjudged, and decreed that C.W. Muldrow, master of Florence County, S.C. do execute and deliver to Forester Lumber Company at his office in Florence, S.C. within twenty days from the date of this decree, a deed conveying to said Forester Lumber Company the timber, easements, and other rights described in the option hereinbefore mentioned, in accordance with the time limits particularly set forth in such option, such time limits to commence from the date of such deed; and that contemporaneously with the delivery of said deed to it by said master, said Forester Lumber Company shall pay into his hands at his said office in Florence, S.C. the sum of $18,000.00, included in which shall be the $1,000.00 now being held by the First National Bank in Florence, S.C.
It is further ordered, adjudged, and decreed that the said deed so executed and delivered to the said Forester Lumber Company by the said C.W. Muldrow, master of Florence County, shall be held and deemed to convey the timber, easements, and other rights described therein free and discharged of any and all claims and liens of any kind and description on the part of the heirs of R.H. Graham and of any and all other persons whatsoever; that C.W. Muldrow, master of Florence County, do hold the $18,000.00 paid into his hands by said Forester Lumber Company as above provided until the further order of this Court; that all of the parties interested in said fund shall, within thirty days of the date of this decree, establish their claims thereon before said master; and that upon the establishment of such claims, the said master shall promptly make a detailed report to the Court for the purpose of enabling the Court to make a final order of distribution among the parties as their interests may appear.
It is further ordered, adjudged, and decreed that a writ of partition do forthwith issue under the hand and seal of E.M. Singletary, the Clerk of this Court, in the usual form, directed to five commissioners commanding them fairly and impartially to make partition among the cotenants Miss Mary J. Graham, Miss Sarah R. Graham, and Mrs. Hester G. Goforth, of the 245-acre tract of land known as the home place of R.H. Graham, according to their several rights.
It is further ordered, adjudged, and decreed that in the event the Forester Lumber Company fails to pay into the hands of C.W. Muldrow, as master of Florence County, the sum of $18,000.00 within the time herein required, the said master shall forthwith advertise the said timber, rights, and easements described in the option for sale, within the usual hours of sale on sales day in December, 1931, and shall execute and deliver to the purchaser, or purchasers, thereof a deed of conveyance therefor of the same force and effect as that he has been herein required to deliver to Forester Lumber Company; that such sale shall be for cash, and the proceeds thereof shall be held by the master for disposition as hereinbefore directed with reference to the purchase price to be paid by Forester Lumber Company, and the plaintiffs and the defendant Mrs. Hester G. Goforth shall have the right to enter judgment against Forester Lumber Company for any difference between the price, after deducting costs and expenses, obtained by the master at such sale and the said sum of $18,000.00.
It is further ordered, adjudged, and decreed that any of the parties to the cause shall have leave to apply at the foot of this decree for such other and further orders as may be necessary to carry it into effect.
Messrs. Lee Moise, for appellant, cite: Time is of the essence of an option to purchase real estate: 56 S.E., 865; 10 L.R.A. (N.S.), 867; 27 R.C.L., 343; 39 Cyc., 124; 144 U.S. 394; 91 S.E., 731; 106 S.C. 455. As to tender: 60 W. Va., 75; 53 S.E., 795; 6 L.R.A. (N.S.), 403. One party to contract cannot be made to perform when other party refuses to perform: 111 S.C. 49; 96 S.E., 692; 82 S.C. 284; 64 S.E., 151; 21 L.R.A. (N.S.), 1029; 5 Strob., 115; 9 S.C. 344; 81 S.C. 279; 117 S.C. 480; 35 Cyc., 716; 134 U.S. 68; 33 L.Ed., 818; 138 S.C. 435; 136 S.E., 762. As to specific performance: 53 S.C. 563; 31 S.E., 360; 109 S.C. 306; 96 S.E., 147; 105 S.C. 171; 89 S.E., 639; 120 S.C. 317; 113 S.E., 128; 127 S.C. 225; 120 S.E., 834.
Messrs. H.E. Davis, W.H. Bridges and Samuel Want, for respondent, cite: In action for specific performance Court will extend time of payment and vary security according to justice of case: 2 Des., 582; 84 S.C. 434; 66 S.E., 880; 134 S.C. 54; 131 S.E., 319; 58 C.J., 1097.
December 29, 1932. The opinion of the Court was delivered by
This action, commenced in the Court of Common Pleas for Florence County, February 10, 1930, is a suit for partition of a tract of timber in said county, and, based on an alleged contract with the defendant Forester Lumber Company in the event the said contract is found by the Court to be fair and reasonable, for the purpose of having the Court execute unto the said Forester Lumber Company "a deed for the interest of any of the owners of such timber who refuse to execute a deed conveying such interest," and for the purpose of having the rights of all parties to the cause adjudicated as to the matters involved in the suit. It appears from the transcript of record that the defendants Mrs. Hester G. Goforth, W. Marshall Bridges, as trustee, and as agent and receiver, and the Forester Lumber Company filed answers to the complaint, but no answer was filed by the defendant Mrs. Lucile J. Graham. Whether the other defendants, who are judgment creditors, filed answers or not the record does not disclose, but it is not material for the reason that their interest in the suit is not involved in the appeal to this Court. By consent order of reference, issued by Judge S.W.G. Shipp, dated May 13, 1930, the case was referred to H.A. Brunson, master of Florence County, to take the testimony and report the same to the Court "with all convenient speed." The said master held references in the cause June 30, 1930, and July 15, 1930, at which references testimony was taken, which was duly reported to the Court, and the cause was heard by his Honor, Judge Shipp, August 13, 1931, on the testimony and pleadings in the case. Thereafter, Judge Shipp issued a decree in the case, dated October 5, 1931, from which the defendant Forester Lumber Company has appealed to this Court. None of the other parties to the cause appealed.
For the purpose of a clear understanding of the issues involved, we quote herewith the complaint and the answer of the Forester Lumber Company, as follows:
COMPLAINT
"1. That on the 4th day of June, 1926, R.H. Graham, of Florence County, South Carolina, departed this life leaving a last will and testament, which was duly admitted to probate in the office of the Judge of Probate for Florence County, South Carolina, on June 16, 1926, as appears from the record in the Probate Roll No. 2052 in said County.
"2. That the said R.H. Graham left surviving him nine children, to-wit: the plaintiffs C.E. Graham, H.M. Graham, O.H. Graham, H.B. Graham, John Y. Graham, Dessie Z. Graham, Mary J. Graham, and Sarah R. Graham, and the defendant Mrs. Hester G. Goforth; and that by Item Four of his said last will and testament, the said R.H. Graham devised and bequeathed in equal proportions to his said nine children all of the timber located on a tract of land known as his home place, situated in Florence County, South Carolina, containing two hundred and forty-five (245) acres, more or less, and bounded now or formerly as follows: On the North by lands of Tillman Lee and M.W. Dennis, on the East by lands of N.M. Graham and S.I. Graham and Mrs. W.J. Willoughby, on the South by lands of R.E. Rodgers, the run of Lynches Lake being the line, and on the West by lands of Matthews, Rodgers, and others.
"3. That said tract of timber is incapable of being divided in kind among the parties in interest, and all of the owners thereof except the defendant Mrs. Hester G. Goforth have agreed to sell such timber to the defendant Forester Lumber Company, a corporation under the laws of South Carolina, for the sum of Eighteen Thousand ($18,000.00) Dollars, which they allege is a fair price therefor; that the said Hester G. Goforth has refused to sign a contract to convey her interest in said timber to said Forester Lumber Company, and that by reason thereof, the plaintiffs are unable to make a private sale of the timber to said company.
"4. That the defendants W. Marshall Bridges as Trustee for H.M. Graham and as Agent and as Receiver of Peoples Bank of Scranton, Mrs. Lucile J. Graham, D.W. Alderman, Jr., Z.C. Lynch, Plough Chemical Company, a corporation duly organized by law, A.H. Andrews Company, a corporation duly organized by law, Merchants Specialty Company, a corporation duly organized by law, and American Agricultural Company, a corporation duly organized by law, each has or claims some interest in said timber, and for that reason they are made parties to this action.
"Wherefore, plaintiffs pray that the said tract of timber be sold for partition, and that if it be found that the contract proposed to be entered into with Forester Lumber Company is fair and reasonable, the Master of this Court, in carrying out such partition, be authorized to execute to such company a deed for the interest of any of the owners of such timber who refuse to execute a deed conveying such interest; that the rights of each of the parties hereto in the fund arising from such sale be established; and that the parties have such other and further relief in the premises as may be just and equitable."
ANSWER OF FORESTER LUMBER COMPANY
"1. That it has no information or knowledge sufficient to form a belief as to the truth of the allegations contained in said complaint, except so much thereof as is hereinafter specifically admitted.
"2. That it admits that heretofore, on or about the ____ day of December, 1929, for and in consideration of the sum of One Thousand ($1,000.00) Dollars deposited in the First National Bank of Florence, S.C. it obtained an option for the purchase of all the pine trees and pine timber ten inches stump diameter twelve inches from the ground, and also all the maple and poplar trees and timber twelve inches stump diameter eighteen inches from the ground on the tract of land referred to in said complaint; said option being for the term of forty-five days, and a copy of said option being hereto attached as Exhibit `A,' and made a part of this answer to the same effect as though the same were fully set forth and incorporated herein.
"3. That this defendant is now, and has been at all times since the date of the execution of said option, ready and willing to comply on its part with all of the terms and provisions thereof, but that this defendant has not been tendered a good and sufficient fee simple title to said timber conveying all of the interest in said timber free of liens and incumbrances.
"4. That this defendant is still ready and willing to accept a good, valid and sufficient fee simple title to said timber and timber rights, rights of way, privileges and easements as are set forth in the aforesaid option, and to pay the balance of the purchase price named in said option, provided such conveyance can be made and delivered to this defendant within a reasonable time, to-wit, a period of ninety days from date of this answer (italics added); but that if the owners of said timber are unable within said time to so execute and deliver to this defendant such timber deed, then, this defendant desires that it be relieved from compliance with the terms of said option and that the said sum of One Thousand ($1,000.00) Dollars heretofore paid on account thereof be returned to this defendant and that it thereafter be relieved and discharged from any and all liability under or by reason of the aforesaid option agreement.
"Wherefore, the defendant, Forester Lumber Company, prays that its rights and interest herein be fully protected and that it have such other and further relief as may be just and equitable.
"(Attached to said answer as a part thereof was a copy of the option contract.)"
By Judge Shipp's decree, in which his Honor discussed the facts and questions involved at length, which decree will be reported with the case, his Honor adjudged and decreed that the Forester Lumber Company was bound to accept a deed for the timber in question and to pay therefor the sum of $18,000.00, the amount stated in the alleged agreement. In appellant's exceptions several questions are raised, but the main contention of the appellant is that the deed for the timber was not tendered within ninety days from the filing of its answer in the case. At the first reference in the case the appellant made known its contention. At that reference the following occurred: "Plaintiffs offered in evidence original contract between C.E. Graham et al., and Forester Lumber Company, introduced and marked Exhibit `A.' Mr. Lee objects to the introduction of the contract, on the ground that being a mere option and the option having expired, and the Forester Lumber Company having set up in its answer that unless a good and sufficient fee simple deed to the timber therein described, conveying all of the interest in said timber free of liens and incumbrances, was tendered within ninety days from February 24, 1930, it was to be relieved from compliance with the option and the $1,000.00 heretofore paid to be returned, it should be henceforth discharged from any liability to comply."
While we are unable to agree with his Honor, Judge Shipp, as to all inferences drawn from the testimony, as set forth in the decree, especially with reference to failure of appellant's counsel to co-operate in getting a speedy determination of the case, we think, under the testimony in the case and the surrounding circumstances, his Honor properly adjudged that appellant should accept the deed to the timber and pay the amount directed. We may also state it is our opinion that, so far as the record discloses, the appellant sustained no injury on account of the failure to get an earlier adjudication of the matters involved which could be said, under the proof, to be chargeable to the plaintiffs or their attorneys.
It is, therefore, the judgment of this Court that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and BONHAM concur.