#### TAYLOR and THOMAS v. MUNGER and BENNETT.

(Filed 27 October, 1915.)

1. Deeds and Conveyances — Timber—Extension Periods — IVotice—Time and Place of Payment — Tender of Payment.

No notice is required to be given by the grantees of standing timber to cut tbe timber from tbe lands during tbe extension period allowed in the conveyance, when by tbe terms thereof no previous notice is required, but that tbe grantees shall have tbe privilege of cutting and carrying off tbe said timber within ten years, with an additional term of five years, if they shall pay annually during tbe additional term, at tbe grantee’s office in N., on tbe first Monday in February of each year, a sum equal to 8 per cent of tbe original purchase price; nor will tbe grantee’s right to tbe extension period be forfeited when it is shown that they have been able, ready and willing to pay tbe interest at all times when called upon, and that tbe grantor has not done so, though tbe grantees have continuously maintained their office at the place designated in tbe deed.

*7282. Contracts — Payment—Time and Place — Kemiircment of Obligee.

Where an instrument fixes a time and place for the payment of money, the person to whom it is to be made should accordingly be present in person or by agent to receive it.

Appeal by plaintiff from Connor, J., at tbe July Term, 1915, of ONSLOW.

Civil action, beard upon an agreed statement of facts. Tbe court rendered judgment for tbe defendants, and tbe plaintiffs appealed.

Duffy & Day for the plaintiffs.

Frank Thompson, T. D. Warren for the defendants.

Brown, J.

It appears tbat tbe plaintiffs conveyed certain timber to tbe defendants, by deed dated 14 January, 1905, with tbe privilege of cutting and carrying off tbe said timber witbin ten years. Tbe said deed contained tbe following extension clause:

> “Tbat tbe said party of tbe second part, tbeir successors or assigns, shall bave an additional term of five (5) years next ensuing tbe ending of tbe first term of ten (10) years in wbicb to cut and carry away said timber from said land: Provided, however, tbat tbe said parties of tbe second part, or tbeir successors or assigns, shall pay annually during tbe additional term of five (5) years, or until said timber shall be cut and carried away, to tbe parties of tbe first part or tbeir legal representatives at tbe office of said party of tbe second part, at tbeir office in New Bern, N. C., on tbe first Monday in February of each year, a sum equal to 8 per cent of tbe original purchase price of said timber.”

"We are of opinion, under tbe above extension clause, that no notice upon tbe part of tbe grantees to tbe grantors was necessary in order to avail themselves of it. Tbe deed does not require any notice, and tbe extension, itself, is a part of tbe contract, and is, in effect, automatic. It is as much a part of tbe contract as tbe original ten years. At tbe expiration of tbe ten years, by tbe very terms of tbe deed, tbe grantees bave tbe right to cut and remove tbe timber witbin tbe succeeding five years, provided they pay a sum equal to 8 per cent per annum of tbe original purchase price of tbe timber.

This case differs from Powers v. Lumber Co., 154 N. C., 405, in tbat there is no condition in tbe deed tbat this 8 per cent shall be paid in advance; on tbe contrary, tbe deed expressly provides tbat tbe money is to be paid to tbe plaintiffs, or tbeir legal representatives, at tbe office of tbe defendants in New Bern, N. C., on tbe first Monday in February of each year. Tbe facts agreed show tbat tbe defendants bave an office at tbeir sawmill, about one mile from tbe city of New Bern; tbat tbe post-office address of tbe defendant was New Bern, and tbat tbe general superintendent of tbe defendant resided in New Bern, and transacted tbe business of tbe company at bis residence in said city.

*729Tbe facts agreed further show that G. G. Bennett, an officer of tbe ■defendant company, resides in New Bern, and resided there for tbe past -two years, and at bis bouse does transact tbe business of tbe company.

It is further admitted that neither of tbe grantors in said deed, nor any one representing them, have applied to tbe defendant company at New Bern, or at its mill office on 1 February, 1915, or at any other time, to receive tbe said money provided for in tbe said timber deed, and they have never made any demand on tbe defendant, either by letter or personally, for tbe payment of tbe said money.

It is admitted that tbe defendant, on tbe first Monday of February, 1915, and at all times since, has been ready, able and willing to pay tbe said money to tbe plaintiffs upon demand, and bad expected tbe plaintiff to call for tbe same. It is found as a fact that tbe defendant’s officers were present at their mill office and at their place of business in New Bern, N. C., on 1 February, 1915, ready, able and willing to pay tbe said money. It is well settled that where a place of payment is fixed, tbe person to whom tbe payment is-to be made should be present by person or agent to receive tbe money. 3 Elliott on Contracts, 117; ■38 Cyc., 150.

We think bis Honor correct in bis conclusions, and bis judgment is

Affirmed.