(after stating the facts.) It is insisted by counsel for the defendants that the court erred in instructing the jury that if the defendants agreed that the plaintiff might deliver all the logs under the contract on the bank of Beaver Slough, and that thereafter the defendants notified the plaintiff that all logs must be delivered on the bank of the St. Francis River, under the terms of the contract, and that no more logs would be taken up on Beaver Slough, the plaintiff had the right to treat the contract as broken, and would be entitled to recover under it.
We are of the opinion that the court erred in giving this instruction, for the reason that there was no testi: mony upon which to base it. The defendants denied having made an agreement with the plaintiff that he should deliver all the logs embraced in the contract on the bank of Beaver Slough. The testimony of the plaintiff himself is to the effect that he began to cut and deliver logs to thé defendants under the contract on Beaver Slough, and that this was agreeable to the defendants.
It is not fairly inferable from this testimony that the defendants agreed that all the logs might be delivered on Beaver Slough. The written contract provides that the logs were to be delivered on the bank of the St. Francis River, on certain sections of land, or at such other places as may be agreed upon. Under this contract the parties might agree upon another place of delivery. But such agreement is not proved in this case. The most that can be said is that the plaintiff commenced to deliver logs under the contract on the bank of Beaver Slough, and that the defendants accepted them there. The plaintiff said that his delivery there was agreeable to the defendants. But it is not shown that the defendants agreed to accept all of the logs there. The defendants might be willing to accept a part of them there and insist on the remainder being delivered at the place on the St. Francis River specified in the contract.
It follows, then, that the defendants had a right to stop the delivery of the remainder of the logs on Beaver Slough and insist upon their delivery upon the bank of the St. Francis River, as designated in the contract. , The defendants, however, having agreed that the plaintiff should deliver a part of the logs on Beaver Slough, should be compelled to receive all of the logs which had been cut by the plaintiff at the time the defendants notified him that they would not take any more logs there, or they should respond in damages for not doing so.
Therefore, for the error in giving the instruction as indicated in the opinion, the judgment must he reversed, and the cause remanded for a new trial.