WiNsnow, J.
Many errors are assigned, but they will not be taken up in detail. Tbe general view which we take of tbe case renders specific treatment of each alleged error unnecessary. The case was really a simple one, though it seems to-have developed some complications as tbe trial progressed,, which, however, were more apparent than real.
Tbe Red Cliff Lumber Company owned the timber in question. Mclnnis & Sons had contracted to cut and bank it as-directed by the owner on the shore of Lake Superior during the winter of 1899 and 1900. Thereafter the plaintiff contracted with McInnis & Sons to cut, haul, and deliver in Labe-*667Superior, and set afloat and boom it, during tbe same winter, for $3 per M.; payments to be made in installments as tbe work progressed. He failed entirely to cut about 400,000 feet, and be left 22,600 feet (as found by tbe jury) in tbe creek. He claims be was excused from full performance by a subsequent agreement with tbe owner and tbe defendants, and tbe question whether such an agreement was made was really tbe controlling question in the case, to which all other questions were subsidiary. Tbe claim is made by the defendants that tbe original contract made by tbe plaintiff and defendants was an entire contract, and that tbe plaintiff was required to show full performance in order to be entitled to recover anything thereon. This contention, however, cannot be sustained. Tbe contract provided for payment in installments as tbe work progressed, with a reservation of one third, which was to be paid when tbe entire amount was boomed. Such a contract is not an entire contract, in tbe sense that full performance must be shown in order to entitle tbe plaintiff to recover anything. Tbe plaintiff,'having performed part thereof, may recover for such part, though be shows no legal excuse for failure to perform tbe whole, subject, however, to tbe deduction of tbe actual damages suffered by tbe defendant on account of tbe plaintiff’s breach. Tbe reserve fund is a penalty, and not liquidated damages. Dullaghan v. Fitch, 42 Wis. 679.
This view of tbe case clears it of some of'tbe difficulties, and brings us at once to tbe consideration of tbe defendants’’ counterclaims for tbe alleged breaches of tbe contract, and of tbe plaintiff’s claim of a subsequent contract by which full performance was waived; and as this subsequent contract is also alleged to have contained tbe agreement to pay twenty-five cents -per M. for hauling logs already cut and banked, on which tbe plaintiff’s second cause of action rests, it is evident that if it was in fact made, and was a valid and binding agreement, tbe plaintiff was entitled to recover upon both causes of action, and tbe counterclaim falls. In order to cover this ques-*668lion, tbe court submitted to tbe jury tbe first special question, by tbe answer to wbicb tbe jury found, in substance, that it was agreed that, if tbe plaintiff would haul tbe logs banked on tbe creek to tbe pond, be should be relieved from cutting and getting in so much of tbe standing timber as be could not get in with bis force and outfit during that logging season. It is apparent that, if this finding was made without prejudicial error, it disposes of tbe claim for damages for failure to cut all of tbe standing timber during that season,- ‘provided that tbe contract was valid, and that it further appears that tbe plaintiff could not get in any more of tbe standing timber during tbe season. Tbe defendants claim with reference to this finding (1) that tbe supposed second contract, if made at all, was not effective, because founded upon no consideration; (2) that there is no evidence to substantiate tbe claim that it contained tbe qualifications with regard to. tbe use of tbe plaintiff’s then existing force and outfit; and (3) that tbe evidence as to whether plaintiff could have got out tbe balance of tbe standing timber during tbe seasón was conflicting, and, that fact not being determined by tbe jury, tbe plaintiff’s supposed excuse fails.
We are satisfied that none of these claims can be sustained. There was ample consideration, upon very familiar principles, to support tbe new promise. Tbe plaintiff was not bound by. bis original contract with defendants to get tbe logs to Lake Superior in any particular way. He apparently bad bis choice of means, so long as the logs were there at tbe close of tbe season. He chose to bank them upon tbe ice of tbe creek, and rely upon running them down that stream in tbe spring. This be doubtless bad a right to do, as between himself and Mc-lnnis; thereby assuming tbe risk of resulting damages in case tbe creek proved to be an unfit stream to float logs upon. Having deposited about half of tbe logs on tbe creek, tbe plaintiff is met by an order from tbe owner of tbe land, wbicb bad reserved the right to control tbe manner of cutting and banking *669logs in its contract witb Mclnnis, forbidding him from banking any more logs upon the creek. Here arose at once a conflict of claims, rights, and interests between the three parties,, which was an eminently fit one for settlement. The plaintiff,, while in good faith claiming that he was proceeding within the lines of his contract, was met by an absolute prohibition from further action in that direction, and a proposition or demand that he draw the logs already banked down the creek to-the pond. If there was a legitimate and bona fide dispute between the parties as to whether he could be compelled to comply with this demand, and such dispute was settled by an agreement such as is claimed here, there was, upon familiar principles, sufficient consideration for a promise by defendants to pay for such service, and to release the plaintiff from further cutting.
As to whether there was evidence to support the qualification embodied in the question put to the jury, namely, that the plaintiff was to use his existing force and outfit, the question presents more difficulty. It is true that there is no direct evidence that this expression was used. Nevertheless we think that, considering the situation of the parties, no other construction can be reasonably implied. The plaintiff testified directly that John Mclnnis told him he would not ask him to cut another stick of standing timber, but that, if he (plaintiff) could get the logs out which were in the creek, he (Mclnnis) would not ask him to do any more; and there was other testimony to the same effect. Considering the situation of the parties, it seems unreasonable to say that the parties could have contemplated anything more than the use by the plaintiff of his existing force and outfit. It was in the midst of the season. The plaintiff had his force of men on the ground, and a camp and logging outfit established, commensurate to the force at work and the contract assumed. There was no intimation of any desire or demand that he should increase the force or the outfit, and it would *670■doubtless have; been a great task to do so. Tbe talk all seems to have assumed tbe continuance of tbeir present conditions. Indeed, if it bad been intended tbat plaintiff was to double 'bis force and outfit, so tbat be could carry on tbe bauling and ■cutting at tbe same time, tbe proposition tbat be might cease ■cutting would have been absurd. From these considerations, we think it clear that the new contract, if made at all, contemplated simply tbe employment by tbe plaintiff of bis existing force and outfit. But it is said that there was evi•dence tending to show tbat tbe plaintiff might, with bis existing force and outfit, have cut a large amount of tbe standing timber after be finished bauling, and tbat this question should have been submitted to tbe jury and answered in tbe negative before tbe plaintiff could be excused for not fulfilling bis contract entirely. Upon this question tbe plaintiff and bis witnesses testified tbat bis camp was broken up somewhere from tbe 15th to tbe 20th of March; tbat it was then soft weather; tbat tbe water in tbe creek where they were bauling bad raised from two to three feet; tbat tbe men would not walk in tbe water; tbat tbe biggest part of tbe .■snow bad gone; tbat where they were loading there was no snow at all; tbat they bad to throw snow in front of tbe rail to start loads; and tbat under these circumstances they broke ■camp and ceased work. On tbe side of tbe defendants there was testimony to tbe effect tbat tbe camp was broken up about tbe 12th or 14th of March, before other camps in tbe vicinity were broken up; tbat tbe weather was somewhat soft then, but tbat it became colder right afterwards, and there was good, cold weather for cutting and bauling for ten or twelve days afterwards. There was no testimony which directly contradicted tbe statements of tbe plaintiff’s witnesses as to tbe condition of road and-creek when the plaintiff broke camp. Doubtless tbe plaintiff was required to show tbat be used diligence in bis work, and did not quit before tbe reasonable judgment of competent men engaged in such business *671would dictate as tlie proper time. Had be quit iu February, ■or any considerable time before tbe time wben spring weather may be ordinarily anticipated in that latitude, the question would have been entirely different. But he did not quit until the middle of March, — a time when it is well known that the weather to be anticipated is a matter of the greatest uncertainty; nor did he quit until, by undisputed evidence, the conditions became nearly or quite impossible for the continuance of his work. He was obliged, also, to haul his logs ■down the ice of the creek, and the fact that there was from two to three feet of water on the ice was without dispute. In this respect his condition was evidently different from that of other loggers who were hauling in the woods. Under the conditions shown, and considering the time of the year, we think the court was justified in concluding that he worked as long as the judgment of a reasonably prudent man would ■dictate. The circumstance that, pwing to a change in the weather, there chanced to' be a few days, late in March, when logs could have been cut and hauled, can have no effect. A verdict that he was negligent in breaking camp when he did would not, in our judgment, have been supported by the evidence.
These considerations, in effect, dispose of the case. There is no question but that the plaintiff was instructed not to use •dynamite.in getting the logs out of the creek, and no attempt was made to show that he did not get out and haul down all the logs that he could get out without the use of dynamite.
The specific errors assigned do not affect the determination of the material issues, but some of them will be noticed:
The defendants proposed twelve instructions, which were refused; but the question of their correctness is not open to consideration, because no exceptions were taken to the ruling until after the verdict. Little v. Iron Liver, 102 Wis. 250.
. Testimony was introduced by the plaintiff, under objec*672tion and exception, of oral conversations between tbe parties prior to tbe execution of tbe written contract as to tbe manner of getting out tbe timber, and as to tbe feasibility of banking it on tbe creek. Tbe construction wbicb we bave given tbe contract renders tbe ruling immaterial.
Tbe defendants claim that plaintiffs reply contained inconsistent defenses to tbe counterclaims. There was, however, but one defense relied upon and submitted to tbe jury,, and no objection was made to the form of tbe pleading in tbe trial court. Furthermore, it is well settled that a party may plead as many defenses as be has, although they may be based on inconsistent legal theories. South Milwaukee B. H. Co. v. Harte, 95 Wis. 592; Stats. 1898, sec. 2657.
Tbe contract between tbe defendants and the Red Cliff Lumber Company was offered in evidence by tbe defendants, and rejected, and exception taken. After tbe argument to tbe jury was begun, however, tbe plaintiff withdrew bis objection, and tbe contract was received in evidence; tbe defendants objecting to the' withdrawal of tbe plaintiff’s objection. It was not claimed that tbe defendants were debarred from putting in other evidence outside of tbe contract by reason of its rejection. We can see no prejudice wbicb could result from tbe fact that it was received so late in the trial, and hence tbe rulings form no ground for reversal, even if tbe rejection at first was erroneous. Upon tbe whole case, substantial justice seems to bave been done, without prejudicial error.
By the Court. — Judgment affirmed.
BaRdeen, J.
One of tbe questions submitted to the jury was whether it was agreed between tbe parties that, if plaintiff would haul tbe logs banked in Bardon creek to the lake, be would be relieved from putting in so much of tbe timber as be bad contracted to put in as be could not get in with bis *673force and outfit during tbe season. Tbe question of whether tbe plaintiff worked with diligence, and whether he did not abandon the work before the season closed, was sharply in dispute. The jury made no finding on the subject. This court has assumed to decide the question. I deny its right to do so. It was plainly a jury question. It was a matter much in dispute. The plaintiff was not relieved from the obligation to put in the timber, except it was determined that he used due diligence, and continued his efforts so long as the season lasted. For this court to assume to determine that question, when there was evidence both ways, was a clear usurpation of the jury’s functions. A determination of the question was essential to support the judgment. Not having been submitted to the jury, the case should have been sent back for a new trial.