#### ELVINGTON v. WACCAMAW SHINGLE COMPANY et als.

(Filed 31 March, 1926.)

1. Deeds and Conveyances — Timber—Extension Period — Consideration— Payment — Time the Essence.

To enforce against the grantor an option of an extension period for cutting and removing growing timber sold upon lands, it must be exer^ cised by the purchaser by paying the consideration within the time specified in the contract, and time will be deemed to be of the essence of the contract.

2. Same — Offer after Expiration of Extension Period — Damages—Rights and Remedies — Motive.

The optionee of an extension period for cutting and removing timber growing upon lands is within his legal rights in tendering the payment required by the contract, after the time therein stipulated and required; without liability to the grantor for damages by reason of causing without personal interference a proposed purchaser from the latter to refuse to accept a proposition he had made for the timber, the subject of the option, whatever the ulterior motive the optionee may have had.

Civil aotioN before Daniels, J., at September Term, 1925, of BeuNs-wick.

On 1 May, 1922, the plaintiff conveyed certain timber rights to W. C. Manning, trustee, which rights were purchased by the defendant. The contract of sale provided for a period of ten years for cutting and removing the timber, and further provided for an additional term “by paying annually to said Elvington, his heirs or assigns, six per cent of the purchase money herein mentioned. The first period provided in the contract expired on 7 May, 1922. The defendant did not make tender for the extension privilege until 10 May, 1922, which was three days after the time expired. The defendant contended that time was not of the essence of the contract and that therefore his tender was valid. This Court, however, in the case of Elvington v. Shingle Go., 189 N. 0., 366, held that the defendants’ right to the extension privilege had been lost by failure to make a tender in accordance with the contract.

*516Tbe plaintiff alleged “that after tbe expiration of said option tbis plaintiff, as be bad a right to do, contracted witb J. J. Knox for tbe sale of said timber for tbe sum of $3,500, and tbe said Knox was ready, willing and able to pay tbis amount for tbe said timber and but for tbe wrongful, unlawful and unwarranted interference witb tbe said timber of tbe aforesaid plaintiff by tbe defendants, tbe contract witb tbe aforesaid J. J. Knox would bave been consummated.” Tbe plaintiff further contended tbat tbe tender of tbe money by tbe defendant, after bis contract bad expired and after be bad sold tbe timber to Knox, prevented Knox from buying tbe timber for tbe reason tbat Knox tben stated tbat be would not take tbe timber, as be “did not want to bave anything to do witb it if there was to be litigation.”

Tbe plaintiff contends tbat tbe tender of money by tbe defendant after tbe time bad expired constituted an unlawful interference witb bis contract witb Knox because by reason thereof Knox declined to take tbe timber.

At tbe conclusion of tbe evidence for plaintiff judgment of nonsuit was entered and tbe plaintiff appealed.

Bobt. W. Davis for plaintiff.

Q. Bd. Taylor for defendant.

Brogden, J.

Tbe legal basis of plaintiff’s cause of action is wrongful, unlawful and unwarranted interference witb tbe contract of sale made by him witb John J. Knox.

It is a violation of a legal right, recognized by law, to interfere witb contractual relation, if there be no sufficient justification for tbe interference. Pollock on Torts, 12 ed., 332. A clear and comprehensive statement of tbe principle is found in Angle v. Chicago St. P. M. & O. B. Co., 151 U. S., 55, and is in tbis language: “Wherever a man does an act which in law and in fact is a wrongful act, and such act as may, as a natural and probable consequence of it, produce injury to another, and which in tbe particular case does produce such an injury, an action on tbe case will lie.” Tbe opinion cites Jones v. Stanly, 76 N. C., 355, and Haskins v. Royster, 70 N. C., 601, which bold tbat, if a person maliciously entices laborers or croppers to break their contracts witb their employer and desert bis service, tbe employer may recover damages against such person. And these cases further bold tbat tbe same reasons cover every case where one person maliciously persuades another to break any contract witb a third person.

Tbe trial judge nonsuited tbe plaintiff, and therefore tbe only question to be considered is whether or not there was any evidence of an unlawful and wrongful interference witb tbe contract of sale made by tbe plaintiff.

*517Tbe only evidence to .support the cause of action was the fact that the defendant tendered the money for the extension.privilege after the time expired, and that at the time of the tender the defendant’s agent said “I am going to get that timber.” There is no evidence that the defendant ever spoke to Knox or had Any communication with him whatever about buying the timber. Knox refused to buy because he did not want to “buy a law suit.” The defendant had a right to make the tender. Therefore it was not a wrongful act for him to do so. Even if it be conceded that the defendant made the tender with a malicious motive, then plaintiff would be in no better plight. “An act which does not amount to a legal injury cannot be actionable because it is done with bad intent. That the exercise, by one man of his legal right cannot be a legal wrong to another is a truism.” Biggers v. Matthews, 147 N. C., 299; Swain v. Johnson, 151 N. C., 93; Bell v. Danzer, 187 N. C., 224.

The principle is thus expressed: “An act which is lawful in itself and which violates no right cannot be made actionable because of the motive which induced it. A malicious motive will not make that wrong which in its own essence is lawful.” “If an act be lawful — one that the party has a legal right to do — the fact that he may be actuated by an improper motive does not render it unlawful.” Bell v. Danzer, supra.

Applying these principles of law to the facts in this case, it is clear that the defendant had a right to make the tender and to assert his claim in a lawful way. Therefore, the attempted tender of the money by the defendant could in no sense be construed as an unlawful and wrongful interference with the contractual rights of plaintiff with a third party. The judgment of nonsuit was properly entered.

Affirmed.