(after stating the facts). It is earnestly insisted by counsel for the defendant that the court erred in giving instruction No. 2 as requested by the plaintiff and in refusing to give instruction No. 6 requested by the defendant. Instruction No. 2 reads as follows:
‘ ‘ 2. Under the contract the defendant agreed to use all diligence in furnishing the plaintiff with enough logs to enable(him to successfully operate his mill for as great a portion of the year as possible, weather conditions permitting. If you find from a preponderance of the evidence that the defendant did not use all diligence in furnishing enough logs to enable Neeley to successfully operate his mill for a great portion of the year as possible, under the weather conditions prevailing in that locality from July 31, 1917, up to the commencement of this suit, January 2,1918; and that such failure to use all diligence in furnishing said logs caused damage to the plaintiff in the manner set out in other instructions, then your verdict will be for.the plaintiff for the amount of such damage ; unless you further find from a preponderance of the evidence that the plaintiff himself substantially breached the contract in such manner as to release the defendant from performance, or find such damage due to plaintiff’s own default in performance of the contract, or find that the plaintiff himself waived the default of defendant in performing the contract, if you find any such default.”
Instruction No. 6 reads as follows:
“6. If you find from the evidence that the contract sued on was changed by the parties in any substantial manner in its performance, and that thereafter plaintiff continued to accept logs from the defendant, and the defendant to deliver same not in accordance with the written contract but according to such substantial changes, then neither party was bound by the contract .sued on, and you will find for the defendant.”
We do not think these assignments of error well taken. Each party claimed that the other had breached the contract, and each also claimed that, if he had in any way breached the contract, such breach had been waived by the other party. Evidence was adduced by the plaintiff tending to show that the weather conditions were such after the execution of the contract up to the commencement of the suit that the defendant could have hauled the logs to his mill in compliance with its terms. On the other hand, according to the testimony of the defendant, the ground was so wet for a part of the time that he could not haul the logs. The respective theories of the parties to the lawsuit were submitted to the jury in instruction No. 2.
The court properly refused to give instruction No. 6. There was no testimony upon which to base it. The testimony does not show that the contract sued on was ever changed by the parties and a new one substituted therefor. The testimony goes no further than to show that the parties contemplated terminating it by selling the timber on the land to other parties and that operation under the contract was suspended for a few weeks while they were trying to sell the timber to other parties. No sale of the timber, however, was made, and no new contract was entered into between the parties.
It is also contended that the court erred in giving instruction No. 6 at the request of the plaintiff. The instruction reads as follows:
“6. Under the terms of the contract, pecky and shaky logs did not constitute defective logs, and the plaintiff would not be justified in rejecting such logs, but you are instructed that mere errors due to mistakes or inadvertence, or mere errors of judgment upon the part of Neeley not due to bad faith or dishonesty which resulted in a departure from the terms of the contract, not substantial, but only slightly, would not necessarily constitute such a breach of the contract as would justify defendant Johnson in failing or refusing to further perform the contract on his part; and in this case if you find that Neeley did reject certain logs as defective, which under the terms of the contract should have been taken, but further find that this was due to mistake or error of judgment, unaccompanied by bad faith or dishonesty; and you further find that satisfactory and correct scale and inspection could have been had by reasonable effort on the part of defendant or by the employment by him of .some competent person, then the rejection of such logs, or difference, or departure from the terms of the contract on scale and inspection by Neeley, if any, would not justify Johnson in failing or refusing to perform the contract on his part, if you find there was such failure and refusal. ’ ’
We agree with counsel' for the defendant with respect to this instruction. In the latter part of the instruction the jury was told that if it should find for Neeley or reject certain logs as defective, which under the terms of the contract should have been taken, but should further find that this was due to mistake or error of judgment, unaccompanied by bad faith or dishonesty; and it ■should further find that satisfactory and correct scale and inspection could have been had by reasonable effort on the part of the defendant, or by the employment by him of some competent person, then the rejection of such logs, or the departure from the terms of the contract on scale and inspection by Neeley, would not justify Johnson in refusing to perform the contract on his part. This is not the law. Under the terms of the contract no duty devolvéd on Johnson to use reasonable efforts to see that Neeley complied with the contract on his part. That duty devolved upon Neeley. Nor did the contract require Johnson to employ some competent person to scale and inspect the logs in order to keep Neeley from violating the contract on his part. No duty was cast upon Johnson by the contract to pay the expense of inspecting and scaling the logs for Neeley.
It follows that the court erred in giving this instruction to the jury, and that such error was prejudicial to the rights of the defendant, for the verdict of the jury might have been based upon the finding by it that Johnson failed to employ a competent person' to scale .and inspect the logs at the mill for Neeley.
For the error in giving this instruction, the judgment must he reversed, and the cause remanded for a new trial.