Mad River Lumber Sales, Inc. v. Willburn

PEEK, P. J.

The present controversy arises out of a contract by which defendant Hazel Willburn, and her husband, now deceased, agreed to sell to one Dolan, the assignor of plaintiff Mad River Lumber Sales, Inc., a corporation, certain timber located in Trinity County. The contract gave Dolan the right to remove all merchantable timber during a 10-year period at certain specified rates. It further provided that title to the timber would pass to the buyer, pursuant to the terms of the contract. Among other things, the contract contained the following provision:

“Neither party hereto shall terminate this contract by reason of the breach of any of the terms, covenants, and conditions hereof on the part of the other party to be kept or performed without first giving notice in writing to such other party of such breach, specifying the general nature thereof and requesting the same to be remedied, corrected, or discontinued within fifteen (15) days thereafter. If said breach be remedied, corrected or discontinued with

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said fifteen (15) day period and the acts complained of be discontinued, if they are of a continuing nature, then, and in that event, this contract shall not be terminated by reason of said breach so remedied, corrected, or discontinued, but if said breach be not so remedied, corrected, or discontinued within said fifteen (15) day period, or if said acts be not so. discontinued, if they are of a continuing nature, then, and in either of said events the complaining party may terminate this contract after the expiration of said fifteen (15) day period by reason of said breach. ’ ’

During the negotiations for the contract, Dolan was informed by the Willburns that they had previously given to one Haschke a contract or option to buy the timber; that Haschke had made no payments and the Willburns had can-celled the contract. As a result of the negotiations, it was

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agreed that in the event Haschke asserted any claim to the timber, Dolan would at his own expense provide a defense for the Willburns and that if the defense were unsuccessful, the Willburns would refund to Dolan his down payment.

The day following the discussion of the Dolan-Willburn contract, Haschke instituted suit against the Willburns to quiet title to the timber. Operations under the W illburn-D olan contract were suspended during the next few years while negotiations to settle the Haschke suit were carried on. The suit was finally settled by Mad River, Dolan’s assignee, giving to the Van Duzen Lumber Company, Haschke’s assignee, a contract permitting Van Duzen to take timber from certain specified areas of the Willburn property. The Van Duzen contract duplicated in all substantial respects the terms of the W illburn-D olan contract, except price. The Haschke suit was then dismissed with prejudice.