DELIVERY IN INSTALMENTS 189 



her as needed for such mining purposes the latter might hire 

 another to produce it and charge the cost to the one obli- 

 gated to saw lumber, was held to bind the mine operator to 

 take from the sawyer all the lumber needed in the mine. 1 

 Under a contract for the sale of the total yearly cut of a mill, 

 except mill culls, the court held that evidence as to excep- 

 tionally low water was admissable in explanation of failure 

 to deliver the amount contemplated by the contract, but that 

 the mill owner could not recover for all lumber delivered 

 when much of it was not of the thickness agreed upon; 2 and 

 in a contract for the purchase of the output of a sawmill by 

 grades, the forwarding of drafts to the seller with a state- 

 ment of the purchasers grading as each installment of lum- 

 ber was received, and the cashing of the drafts by the seller 

 was held to make it clear that the parties to the contract 

 had not intended that the seller's grading should be made the 

 basis of payment. 3 In an action on a contract for the sale 

 and delivery of lumber it has been held that the withholding 

 of the pay for one car until another should be delivered, for 

 the purpose of enforcing a fulfillment of the contract, would 

 not release the vendor in the absence of circumstances indi- 

 cating that the vendee did not intend to fulfill his part; 4 

 and in a sale of a large amount of lumber with provision for 

 a payment when it was loaded on cars, it was held that 

 though the vendor could present evidence of a failure of the 

 purchaser to make the partial payments as they became due 

 to justify a rescission of the contract on his part, he could 

 not recover for the contract price of the lumber delivered, if, 

 before a formal rescission and without the consent of the 

 purchaser he had sold over one-half of the lumber covered 

 by the contract. 5 That is, although the contract was 

 severable as to partial payments, it was entire as to per- 

 formance. Where a contract for the sale of wood, with a 

 provision for payment as fast as the purchaser sold it, stipu- 

 lated that title should remain in the vendor until payment 

 was made, an action by the vendor for the sale price of that 



1. Tutwiler v. McCarty, (Ala.) 25 So. 828. 



2. Barr v Henderson, (La.) 30 So. 158. 



3. Long-Bell Lbr Co. v. Stump, 86 Fed. 574. 



4. West v. Bechtel, (Mich.) 84 N. W. 69. 



5. Easton v. Jones. (Pa.) 44 Atl. 264. 



