DIVISIBLE CONTRACTS 



of contract, in the absence of any evidence as to bad faith 

 on the part of either the logger or the owner's agent. 1 How- 

 ever, in the same jurisdiction it was held in another case that 

 the partial acquiescence by a logger in the direction of the 

 owner of the timber that timber covered by the contract be 

 left uncut, did not release the logger from liability for any 

 loss sustained because of his failure to put in all of the logs, 

 when he sought damages for a breach of contract by the 

 owner; 2 and in still another case that the action of an 

 owner in preventing the logger from cutting all merchant- 

 able timber on a tract, did not release the sureties of the 

 logger, where the terms of the contract gave to the owner 

 the decision as to what constituted merchantable timber. 3 

 The measure of damages for the failure of a logger to remove 

 all the timber from certain land has been held to be the dif- 

 ference between the market value of the timber left standing 

 and the contract price of timber at the time of the breach 

 of contract by the logger. 4 



If the contract does not leave to the owner the determi- 

 nation of what timber is to be cut, and the action of the 

 logger in failing to cut timber is not a mere acquiescence in 

 the advice of the owner or a yielding to his objection but is 

 rather a compliance with a positive direction or compelling 

 action on the part of the owner, the owner will be liable for 

 the difference between the contract price and what it would 

 have cost the logger to fully complete his contract. 5 And 

 in such an action, evidence as to the profits realized by the 

 contractor on anotlier contract carried out after the pre- 

 vention of the execution of the one in suit has been rejected 

 as incompetent in mitigation of damages. 6 



Where an agreement is made that one party shall advance 

 money or furnish supplies for the cutting, hauling, driving 



1. Maltby v. Plummer, 71 Mich. 578. 



2. McGregor v. Ross, 96 Mich. 103, 101 Mich. 575. But see Blood v. Herring 



(Ky.),61 S. W. 273. 

 :i. Haines v. Gibson, 115 Mich. 131. 



4. Stillwell v. Paepcke-Leicht Lbr. Co. 73 Ark. 432, 84 S. W. 483, 108 Am. St. Rep. 42. 

 See also Anderson v. Lbr. Co. 121 Ga. 688, 49 S. E. 725; Lbr. Co. v. Griggs, (Ky.) 



118 S. W. 920; Smith v. Holmes, 167 N. C. 561, 83 S. E. 833; Wiley v. Lbr. Co. 

 156 N. C. 210, 72 S. E. 305; Heyser v. Hunter, 118 N. C. 964, 24 S. E. 712; 

 Young v. Lloyd, 65 Pa. 199; Larson v. Cook, 85 Wis. 564, 55 N. W. 703. 



5. Allen v. Murray, 87 Wis. 41; Corbett v. Anderson, 85 Wis. 218; Nash v. Hoxie, 



59 Wis. 384; Salvo v. Duncan, 49 Wis. 151. 



6. Allen v. Murray, 87 Wis. 41. But see Dunn v. Johnson, 33 Ind. 54, 5 Am. Rep. 177. 



