(dissenting). In this case there is no evidence of the parties ever having, at any one time, made any agreement as to- their subsequent dealings and fixing their respective rights and liabilities. The orders are all separate and independent,' never referring to others or to any prior arrangement, with different provisions as to price, quantities, and times of delivery, and some differences as to times of payment; the plaintiff asserting at times that payments are to- be on the 10th, the 15th, or the 20th, respectively, of the month following deliveries, and all particular provisions as to times of payments had at times been waived.
I think these orders were separate and independent contracts as a matter of law, and that the method of payments from time to- time did not alter their legal character.
Evidently a cancellation of or refusal to accept under any one order by defendants could not legally have justified plaintiff in refusing to ship under other then outstanding orders.
In Mr. Proudfit’s letter of November 22d stating the deposit of the $1,000, he expressly refers to shipments “due them under their existing contracts.’1 This would seem a fairly reasonable notice to- plaintiff that what he, plaintiff, considered merely separate orders in the course of one- transaction, were, in the estimation of defendants, of the dignity of separate contracts. There were either orders under one contract or separate contracts. I think the defendants through Mr. Proudfit notified the plaintiff concisely and accurately that they claimed rights under several independent contracts.
The letter of plaintiff of November 23d, declaring his intention to call all transactions at an end, was written at a time of a rising market, as would appear from the testimony and findings herein, even without resort to common knowledge as to the then situation. This fact, I think, is entitled to great weight in considering the acts of the parties. In this letter plaintiff expresses his surprise upon three grounds, *296and those, with the statement that there was then due and unpaid $1,011.38 (only $11.38 more than the deposit with the Madison bank), are the only grounds upon which it can be claimed from the letter itself he based his right to refuse .to' make any further shipments; and these grounds, which were also asserted by plaintiff in his verified reply, were as . follows: (1) That the order for five cars of Pocahontas had been canceled by defendants. This assertion was found by the court to be false. (2) That the order for four cars of White Star had also been canceled by defendants. This assertion was also' found by the court to' be false. (3) That the eleven cars of Franklin county coal demanded by defendants were part of an order of eighteen cars, of which eleven had been shipped, leaving nine instead of eleven, and this order was subject to1 delivery between June, 1916, and March 31, 1917, and that there remain four months to complete the order, and in effect claiming that he had until the end of that period to hold all deliveries.
By this letter, therefore, plaintiff expressly repudiated any ■obligation td ship either of the respective orders of five cars •of Pocahontas and four cars of White Star for reasons which the court has found were not supported by the facts and therefore false, and in effect claimed the right to withhold delivery on the other.
If the transactions between the parties were in effect one contract, as held by the majority, then there seems here to have been a positive, definite declaration, based upon mistake if not falsehood, of a refusal of recognition of a substantial part of such contract and such as would warrant defendants to consider it an intention by plaintiff to abandon the contract. It should be noted that nowhere in this letter does •plaintiff consent, even if the $1,011.38 is paid, to recognize any rights in defendants under either of these two orders.
Under any consideration of the relationship between the . parties I think it is evident that the defendants had the right .to demand delivery of some if not all of these several orders *297and to have until the 20th of the month following delivery to pay for the same. The plaintiff took the position, however, that there were no such orders in existence any longer. If the defendants ought to have immediately answered this peremptory letter of plaintiff and explained any misunderstanding, if such there was as to whether plaintiff was correct in surmising that the money was to' be withheld until-April 1st, the same rule would require plaintiff to.promptly notify defendants, and before the time limit set of November 27th had expired, that if defendants did pay they would be recognized as having rights under these two orders.
That the breach must be substantial to warrant a seller in taking the position assumed by plaintiff is the law of this state by the statutes and decisions cited in the majority opinion.
Many authorities hold, and with good reast a vs*™. must be a further showing of intention to abandon-a.contract. West v. Bechtel, 125 Mich. 144, 84 N. W. 69; Welsh v. Michigan M. Co. 161 Mich. 16, 125 N. W. 692; Empire R. M. Co. v. Morris, 77 N. J. Law, 498, 72 Atl. 1009; Quarton v. American L. B. Co. 143 Iowa, 517, 121 N. W. 1009, 32 L. R. A. n. s. 1.
If the amount of coal to be delivered as indicated in Mr. Proudfit’s letter was unreasonable in view of any contingencies of transportation or mining, or for any 'reason, the plaintiff in honesty and good faith should have said so. The mére making of an unwarranted claim for performance during the life of a contract is not such a breach as would warrant cancellation. Nat. C. Co. v. Hudson River W. P. Co. 192 N. Y. 209, 216, 84 N. E. 965; 13 Corp. Jur. 658.
The tone of Mr. Proudfit’s letter inviting, not repelling, suggestions from plaintiff on the subject, the deposit of the $1,000, more than the amount ($914.28) ultimately found due the plaintiff, the demand for more coal under the orders, absolutely .inconsistent with an intention to abandon; the rising market under which the defendants would so nat*298urally and reasonably hold onto rights secured to them at prices lower than then existing; and on the other hand the absolute repudiation by ^plaintiff of any liability as to the then existing valid orders on mistaken if not false grounds; the rising market where plaintiff would profit by breaching his obligation, all presented such a situation that I think the court should have said that the plaintiff was in default and liable.
I am authorized to state that Justice Owen concurs in this dissent.