on rehearing.
Wood, J.It is true, as appellee contends, that the one hundred dollars which in its letter of April 4th, it stated it was “holding up” was not due until two days thereafter (April 6th). But the letter shows that appellee treated it as if it were due when it was writing the letter, and we so treated it. The letter is set out in the statement, and it clearly shows that appellee did not intend to send that one hundred dollars (which it then knew would be due in two days) until appellant had shipped the last car. For the letter expressly states: “It will be just as convenient for us for you to ship with draft, invoice and bill of lading attached as regular terms, provided that on the last car of our order you include the draft for $100 which we are holding up.” This letter was in answer to appellant’s letter saying: “Before we ship any more lumber we must know about this pay.” Appellant had the right to make that inquiry and that demand, for at that time appellee owed appellant $313.13 past due. The answer to this inquiry and demand (letter of April 4th supra) shows, as we have endeavored to make clear, that appellee intended to withhold that amount, even after it was due under the contract, to “force appellant to make shipment.” This appellee could not do without breaching the contract. Notifying appellant of that fact in advance absolved it from further effort to carry out the contract on its part.
We believe our first conclusion therefore is correct, and the motion for rehearing is overruled.