The counsel for the plaintiff insists that if the defendant failed to perform the contract on his part, then he would not be entitled to his lien upon such logs as he did cut and raft under it; in other words, that a full performance of the contract by the defendant was an essential condition to his having a lien. We do not so understand the terms of the contract. Manifestly it was not the intention of the parties that all the logs mentioned in the contract were to be cut and rafted together. The defendant was to have two lumber seasons within which to cut and run the timber. And of all the logs cut, banked and run, each party was to be the owner of an undivided half, subject to the liens and claims provided in the contract. But if it was found impracticable, by reason of the shortness of the lumbering season, or failure of snow, or quality of the sledding, to perform the contract the first season, then the defendant was to have the next to perform it in ; but he was to have his lien upon such logs as he might be able to get out, at all events. In the fall of 1869 he had a valid and subsisting lien upon the logs which he sold the next spring. The plaintiff offered to show that the defendant had not fully performed his contract, for the prrrpose of entirely defeating the lien. The court ruled that any damages the plaintiff could *432show that he had suffered in consequence of the nonperformance of the contract by the defendant, he might recoup from the defendant’s claim, but that the defendant did not forfeit his lien entirely by reason of his failure to fully perform. It seems to us the court below was right in this construction of the contract, and that a full performance was not an essential condition to the defendant’s right to a lien upon such logs as he got out under the contract.
But it is further insisted, that if the defendant had a lien, he waived and released it; first, by delivering possession of the logs to the plaintiff; and second, by an agreement subsequently made.
Where the lien is given by law, the doctrine is well settled, that a voluntary surrender of the possession is deemed a waiver. In this case, however, the lien is created by express contract as well as by statute. The language of the contract is: “ And it is hereby expressly agreed between ■ said Scott and said Smith, that said Scott shall have and hold a lien in and on the entire logs cut and run as aforesaid, and may retain in his possession the entire logs so cut and run until he shall be paid in full for all sums that may be due him on this contract for cutting and running said Smith’s half of said logs at the price aforesaid, and all other expenses incurred by said Scott on said logs under this contract.” The contract also further provided, that, after the logs were all rafted and ready to be delivered and paid for, the same should be divided by raft, quality and quantity considered, in order that each party might have an equal amount. This division was made. There was no evidence whatever that the defendant voluntarily surrendered possession of the plaintiff’s half with the intention of discharging the lien ; and the court directed the jury that the fact that the parties divided the logs did not discharge it. The court also charged that the defendant did not lose his lien by any change of possession, nor by reason of his failure to perform the contract on his part, and that the lien would only be discharged by some agreement between the parties for a discharge.
*433Tbe intention is very manifest from tbe contract, to continue tbe lien upon tbe logs until tbe amount due tbe defendant was paid. Tbe plaintiff was to have tbe right of selling bis undivided balf at any time, subject to tbe liens and claims of tbe defendant. But tbe lien was to continue after tbe sale until tbe defendant was paid. There is really no evidence that tbe defendant voluntarily parted with tbe possession of tbe plaintiff’s portion of tbe logs with tbe intention of relinquishing bis lien. Some acts of tbe defendant are relied on to show a waiver; but to our minds they are entirely consistent with tbe presumption that be intended to insist upon bis rights under tbe contract. Tbe lien was clearly and expressly given by tbe agreement, and, although a division was made, yet there is no proof that upon that division the defendant surrendered tbe possession with tbe intention of relinquishing it. On the contrary, tbe proof is very clear that tbe defendant always claimed bis lien, and insisted upon bis rights under tbe contract.
It is said that by tbe terms of tbe subsequent agreement made with reference to the Mud Lake logs sold to tbe defendant, tbe plaintiff was to have bis share of tbe Shioc logs on tbe division discharged of lien. We do not so understand that arrangement. Tbe amount due tbe plaintiff upon tbe sale of the Mud Lake logs to tbe defendant for $9 per thousand feet, was to be applied in payment of tbe lien on the Shioc logs. This is tbe language of that subsequent agreement, as written by tbe plaintiff himself. Now what was tbe amount due tbe plaintiff on tbe sale of tbe Mud Lake logs? Was it tbe value of one-half of those logs computed at $9 per thousand feet; or was it tbe amount coming to him after tbe lien of tbe defendant upon those logs bad been discharged? Manifestly, as it seems to us, it was tbe latter sum. Tbe charges and claims of tbe defendant for putting in those logs were made liens by tbe contract, and whatever would be coming to tbe plaintiff after paying those liens would be the amount due upon tbe Mud Lake 1 )gs. It would be a most unnatural and forced construction of tbe *434language, to say tbat tbe defendant agreed to apply tbe full value of one-balf of tbe Mud Lake logs in payment of tbe lien on tbe Sbioc logs — thus abandoning his claims on tbe former lot, so clearly secured to him by tbe contract. There is certainly nothing in tbe language of tbe writings, and nothing in tbe circumstances surrounding tbe transaction, which would warrant any such assumption. The parties were dealing with each other with full reference to their rights under tbe contract. And when they stipulated tbat tbe amount due tbe plaintiff on tbe Mud Lake logs, was to be applied in payment of tbe liens on tbe Sbioc logs, they manifestly referred to tbe balance due him after deducting tbe charges of tbe defendant on tbe former lot. For what was coming to tbe plaintiff, by tbe terms of tbe contract, on tbe Mud Lake logs, after deducting tbe charges upon them for getting them out and rafting them, was tbe amount due him. And this amount it was mutually agreed should be applied in payment of tbe liens upon tbe other lot, and there is no pretense tbat tbe plaintiff did not have credit for this sum. Tbe amount due him upon tbe Mud Lake logs sold to tbe defendant for $9 per thousand feet was applied according to agreement. Tbe circuit court placed this construction upon tbe written contract; and as it appears to us, it was tbe only construction which could properly be given to it. It is assumed by tbe counsel for tbe plaintiff tbat tbe written contract was a little obscure upon this point, and tbat tbe intention of tbe parties was made plain by tbe explanation given by tbe plaintiff on tbe trial. But to our minds tbe meaning of tbe written contract is clear and unambiguous. And it was, tbat tbe amount due tbe plaintiff on the sale of bis half of tbe Mud Lake logs, after deducting tbe charges upon them, was to be applied towards tbe payment of tbe amount due tbe defendant for getting out tbe Sbioc logs; and tbat amount was so applied. And we therefore think there was no evidence to go to tbe jury upon tbe questions, whether tbe defendant’s lien upon tbe Sbioc logs bad been discharged *435in full before the alleged conversion; or whether be bad waived it by voluntarily surrendering the possession of these logs to the plaintiff with the intention of releasing it. And if the jury had found that the defendant had been paid his lien on the logs in controversy by the arrangement made about the Mud Lake logs, or that he had voluntarily abandoned his lien, it would have been the clear duty of the court to set the verdict aside as unsupported by the testimony in the case.
The next question is, Did the defendant lose his lien by his delay in enforcing it ?■ We see no ground for saying that there was any unreasonable delay on the part of the defendant in selling the logs. By the contract, after the logs were ready for delivery, if the plaintiff did not, within three weeks after notice, pay the amount due the defendant for cutting, banking and running the logs, then the defendant was to proceed and sell a sufficient quantity to pay all sums which might be due him. It seems the notice was given the last of October, 1869, and the plaintiff was informed of the amount claimed by the defendant to be due on the logs. After waiting the requisite time, the defendant advertised the logs for sale, but could get no satisfactory bid for them at public sale. He likewise tried to sell them at private sale, but was unable to do so until the month of March following, when he sold upwards of 200,000 feet to Spencer Mowry for $7.00 per thousand. But it does not appear that the defendant was wanting in proper diligence in enforcing his lien, or that the plaintiff sustained any loss by the delay. The defendant testified that the best offer he could get for the logs was $6.00 per thousand, previous to his sale to Mowry. It is conceded that the defendant could not unreasonably keep the logs to the plaintiff’s loss, and there is no evidence tending to prove that he did so. He seems to have acted as promptly as possible, and sold the logs as soon as he could without too great a sacrifice on their value.
The last objection is, that the defendant was guilty of a conversion by selling more logs than was necessary to satisfy his *436lien, and that as to tbe overplus or excess tbe plaintiff was entitled to recover. Tbe logs were sold in tbe raft. It appears that two rafts were insufficient to satisfy tbe claim of tbe defendant, and be sold a third raft entire, which was more than enough to discharge that claim. On the part of tbe defendant it is insisted that he was under no obligation to take tbe risk of breaking a raft so as to get out just logs enough to satisfy bis lien, but had a right to sell the property in the form in which that kind of property was ordinarily and usually sold, even if by so doing something over tbe amount of bis claim was realized. There was evidence tending to show that logs were usually sold in the market at Oshkosh in rafts; and the court instructed the jury that if they were satisfied from tbe testimony that this was tbe usual and ordinary method of selling that kind of property, and that two rafts were insufficient to pay the whole claim of tbe defendant, then he would have the right to sell a third raft, notwithstanding there might be more than enough in tbe third raft to satisfy tbe defendant’s lien; and that as to tbe excess be would not be guilty of a conversion. It seems to us that this was a proper direction as to the law applicable to the case. True, the contract authorized the defendant, in case he was 'compelled to make sale, “to sell a sufficient amount to pay all sums ” which might be due him ; but this authority to sell should be construed with reference to the nature of the property and the usual way of selling the same in tbe market where' 'the parties contemplated tbe sale to take place. If logs in tbe Oshkosh market were generally sold in rafts, had the defendant divided a raft and the plaintiff sustained a loss in consequence thereof, he might well have complained of the irregularity in making the sale. As it is, there is no ground for saying that tbe defendant was guilty of a violation of duty in selling the logs in rafts in the way they are ordinarily sold in that market.
It follows from these views that tbe judgment of tbe circuit court is correct and must be affirmed.
By the Court. — Judgment affirmed.