DISSENTING OPINION. The appellee contends that it is entitled to an extension of time in which to cut and remove the timber because it was prevented from cutting and removing the timber by the wrongful conduct of the appellant. This contention is based on the maxim that "no man can take advantage of his own wrong," in which is included a more restricted maxim that "he who prevents a thing from being done shall not avail himself of the nonperformance he has occasioned" on which the doctrine of estoppel in pais is based. Broom's Legal Maxims, 9th Ed. page 197. Maxims of this character should be applied with caution and should be restricted rather than be enlarged in their application, in dealing with which it is well to bear in mind Mr. Justice Holmes' oft quoted dictum that "general principles do not decide concrete cases." In order for this maxim to apply here, it must appear that the appellee was actually prevented by the owner of the land, the appellant, from cutting the timber therefrom. 34 Am. Jur., Logs and Timber, Section 36; Peshtigo Lumber Company v. Ellis et al.,122 Wis. 433, 100 N.W. 834; Note to Halla v. Rogers, 34 L.R.A., N.S. 120. *Page 433
The interference with the cutting of the timber here claimed was not by the appellant but by the holder of a mortgage on the land who notified the appellee to quit cutting timber unless he paid him, the mortgagee, $150 due the mortgagee under the appellee's contract with the appellant for the cutting of the timber. The appellee had already paid this amount to the appellant and it preferred to cease cutting the timber rather than pay it again, although he could have recovered it from the appellant under his warranty in the timber contract. The appellee was here presented with a choice of two courses of conduct — "knowing (in the language of the Supreme Court of Wisconsin in Peshtigo Lumber Company v. Ellis, supra) that the choice of one course will result in a lawsuit and that the choice of the other may forfeit valuable rights; but we have not supposed that this knowledge would relieve from the necessity of making a choice, or excuse one for sleeping on his contract rights."
The cases of Roberson v. Little, 200 Ala. 582, 76 So. 940, and Halla v. Rogers, 9 Cir., 176 F. 709, 100 C.C.A. 263, 34 L.R.A. (N.S.) 120, relied on in the main opinion herein, have no application here, for in both of them the purchaser in the one case and the lessee in the other was prevented from utilizing the property within the time limit therefor by wrongful court proceedings instituted by the owners thereof. In Walker v. Cox,209 Ala. 627, 96 So. 707, 709, the Supreme Court of Alabama said: "In the Little Case (referring to Roberson v. Little, supra), it will be noted that the owner of the soil deliberately and persistently prevented the cutting of the timber by the purchaser until the expiration of the stipulated term, and for the purpose of thus depriving the purchaser of the benefits of his bargain."
Pitchford ratified the appellant's sale of this timber for which the appellant paid him $510 in cash and agreed to pay him $300 more, but failed to pay $150 of it. He of course violated this agreement with Pitchford but that *Page 434 fact did not warrant the appellee in refraining from cutting the timber when Pitchford advised him thereof, and that he would demand its payment. I have found no case factually similar to the one here under consideration, and the one nearest thereto which fully expresses my views, and, in my opinion, correctly announces the law applicable hereto, is Peshtigo Lumber Company v. Ellis, supra. What the court below did was simply to amend the contract entered into between the appellant and appellee contrary, in my judgment, to its right so to do.
The judgment should be reversed.