On Motions for Rehearing.
Tortuguero Logging Operation, Ltd., objects to our statement in the opinion that it was under no contractual duty to Carrib-bean Lumber Company, its assignor, to extract timber. The point is urged in connection with Tortuguero’s argument that it should recover $11 per thousand feet of lumber which should have been extracted. It complains because we deducted $5 per thousand feet which would have been its cost for timber which it extracted. We must remember that we are dealing with damages for uncut timber. Under the facts, Tortuguero is not and cannot be accountable to its assignor at the rate of $5 per thousand feet for uncut timber. The assignment from Caribbean to Tortuguero expressly provided that Carribbean may cancel the assignment for non-performance, but that “none of the parties will have any right to claim damages.” It would have been a better statement if we had said that Carribbean could not recover damages from Tortuguero for breach of any contractual duty which Tortuguero might owe Car-ribbean. In any event, the proof shows that Tortuguero will not be liable in damages to Carribbean for uncut timber, and that the profit which Tortuguero would earn on timber extracted was $6 per thousand feet of lumber.
Tortuguero also urges our reconsideration of our holding that it accepted $1,450, from defendants on March 20, 1948, under circumstances which amounted to an accord and satisfaction of Tortuguero’s claims up to that date. Upon reconsideration, we *320grant that portion of the motion for rehearing. The jury found that defendants should have extracted 4,250,000 board feet of timber from October 22, 1947, to October 22, 1948. The undisputed evidence shows that up to March, 1948, only 150,000 board feet were extracted, and that there was never any dispute between the parties about the kind, quantity, or value of timber. Defendants paid and Tortuguero accepted the $1,450, and upon acceptance, it wrote defendants, “We have agreed that in consideration of the several inconveniences we have had, we consider the present payment satisfactory to us, but with the understanding that in the future payments will be made every month end, according to our contract of October 22nd last. In case that logs are not measured by the end of the montlj, an estimated amount will be paid.” Theréafter, defendants did nothing. They did not respond to the letter nor perform under the contract. The jury found as a fact that Tortuguero accepted the $1,450 payment in full settlement of all amounts then due. Judgment was accordingly entered by the trial court that all disputes were adjusted up to March 20, 1948, and recovery was granted Tortuguero only upon the basis of timber which defendants should have diligently cat after March 20, 1948.
If the dispute up to March 20, 1948, was not settled, then the defendants are liable also for their lack of diligence in extracting timber from October 22, 1947, up to that date. The jury findings are that diligent efforts would have produced 1,770,838 board feet of timber, and the $1,450, was paid for that amount of timber. Diligent extraction would have produced an additional 1,620,838 board feet of Cedro Macho timber between October 22, 1947 and March 20, 1948. At $6 per thousand board feet, this would mean that Tortuguero lost $9,-726, for lack of diligent extraction during that period.
We conclude that there was no accord and satisfaction. When defendants paid Tortuguero the $1,450 they were doing exactly what their contract required them to do. They were paying the contract price agreed upon for the kind and quantity of timber extracted. There was never any dispute about the amount owing on this contractual obligation. Defendants merely paid what they were legally bound to pay. There was, therefore, no consideration for an accord or settlement of defendants’ breach of the other obligations of the contract, such as that which required diligent extraction of timber. American National Ins. Co. v. Teague, Tex.Com.App., 237 S.W. 248; Jones v. Risley, 91 Tex. 1, 32 S.W. 1027; Buchanan & Carvel v. Etie, Tex.Civ.App, 191 S.W.2d 706; Woodmen of the World Ins. Soc. v. Armstrong, Tex.Civ.App, 170 S.W.2d 526; Woodmen of the World Ins. Soc. v. Brown, Tex.Civ.App., 164 S.W.2d 190; Chicago Fraternal Life Ins. Ass’n v. Herring, Tex.Civ.App., 104 S.W.2d 901, 903. When a claim is based upon a liquidated demand and the amount due is definite and certain, payment and acceptance of less than the entire sum due, in the absence of some new consideration does not bar recovery of the balance due, and a receipt or release in full of the balance due is without consideration. First Texas Prudential Ins. Co. v. Connor, Tex.Civ.App, 209 S.W. 417. Accord, Fidelity & Casualty Ins. Co. of New York v. Mountcastle, Tex.Civ.App, 200 S.W. 862; Boerger v. Vandegrift, Tex.Civ.App, 188 S.W. 948.
We were in error in stating in the opinion that there was a new consideration by reason of Tortuguero’s letter which imposed a new duty to estimate the amount of timber cut when it was not actually meas-sured. We have searched in vain, and find no proof that defendants ever expressly or impliedly agreed to or accepted that new obligation. Simms Oil Co. v. American Refining Co, Tex.Com.App., 288 S.W. 163. Following Tortuguero’s letter stating that new duty, there is total silence in the record. There was no agreement by which the only possible new consideration might have arisen.
*321We accordingly grant Tortuguero’s motion for rehearing in part and adjudge defendants liable for failure to extract 4-250,000 board feet at $6, per thousand feet, less $1,450, which defendants paid. Tor-tuguero is also entitled to recover prejudgment interest. Defendants’ motion for rehearing is overruled. Costs are adjudged against defendants.