This appeal is from denial of a motion for summary judgment by plaintiff which was certified for review. Del-Cook Timber Company contracted with Frank Bird, Jr. for the purchase of timber from his tract of land in Florida making an advance payment of $1,000. Plaintiff brought this suit for refund of this advance payment. This appeal arises out of a factual dispute revolving around the following provision in the contract:
"It is expressly agreed and understood by the parties here to that if Buyer has been unable to cut and remove $1,000 in value of trees from said tract by August 27, 1970, then said Buyer shall have the option to (1) have this contract extended by such length of time as is necessary to cut and remove $1,000 worth of trees, or (2) Seller shall refund Buyer the difference between the value of trees cut and removed . . . and the $1,000 advance which has been paid to Seller." (Emphasis supplied.)
This provision shows the buyer's options become exercisable if it has been "unable to cut and remove." Whether such was the case is a question of fact. Plaintiff-buyer has alleged several trips to the land to see if the land was dry enough to cut and remove the timber and on each occasion concluded it was too wet. Defendant denied this allegation. Both sides have presented affidavits containing the opinions of experts which merely sharpen the conflict.
Tillman, Brice, McTier & Coleman, John T. McTier, for appellee.