(dissenting)—I am inclined to the opinion of Judge Main that the contract imposes no duty upon the respondent to furnish logs or shingle bolts. But, independent of that consideration, there was a breach of the warranty contained in the mortgage, at the time it was given, because a large and substantial part of the mill machinery necessary to the operation of the mill did not belong to the appellant. In addition, at the time respondent refused to proceed further with the contract, and for some time prior thereto, appellant was sorely pressed and threatened with immediate litigation at the instance of creditors whose claims were overdue and beyond the ability of the appellant to pay. Its condition was one of insolvency. As was said in Nixon v. Hendy Machine Works, 51 Wash. 419, 99 Pac. 11, followed in McKnight v. Shadbolt, 98 Wash. 665, 168 Pac. 473:
“The evidence plainly shows that it was insolvent in that it was not able to pay its debts in due course of business, and this is the test of insolvency adopted by this court where the rights of creditors are involved.”
*363In such circumstances, respondent was within its rights in the protection of its property to decline to furnish cedar timber, without such conduct constituting any cause for complaint against it.
"While possibly not important, it may be noticed that, by the provisions of the first portion of paragraph 5 of the contract, appellant is protected in its right to purchase timber from third parties if necessity arises.
The judgment of the trial court should be affirmed.