174 P. 548 | Or. | 1918
“I asked him when we came to measure it up, after passing the time of the day, what he was going to do about the wood, if he didn’t have the amount of wood cut. He said it remained to be seen how much wood they had cut. After we had gotten it figured up, I spoke to him again about it, only in a joking way more than anything else, and I asked him what he was going to do about the amount of wood lacking to make up that twelve hundred cords, and he said, ‘What are you going to do about it? I suppose first we should see what you can do something with us,’ and I passed it off by saying that we had put that in there in order to get the wood along as fast as we could; in order to get it done, and that they had done the best they could, and we were willing to let it go.”
Under these circumstances the trial court very properly ignored the subject of the plaintiff’s default, except that a finding was made as follows:
“That by the terms of said contract, 1,200 cords of wood were to be cut and piled by the plaintiffs on or before March 1, 1916. That the plaintiffs defaulted in the performance of these provisions of tbe contract and on said March 1, 1916, had cut several hundred cords less than the quantity stipulated in the contract, but neither party has ever made or now makes any claim or demand against the other because of such default. ’ ’
It is also urged that error was committed in denying a judgment to defendants upon their counterclaim, but since this demand is based upon the wrongful abandonment of the work by plaintiffs, and the findings are to the effect that such abandonment was not wrongful, nothing further need be said in relation to it.
"We find no error in the record and the judgment is affirmed. Aeeirmed.