
    The United States Lumber Company, Appellant, v. The Alexander Lumber Company, Appellee.
    
    No. 17,370.
    HEADNOTE BY THE REPORTER.
    
      Sales — Default of Buyer — Rescission by Seller. Where two independent contracts for the shipment of lumber are made and. the buyer refuses to make part payment on the first shipment, for the purpose of offsetting the amount as damages claimed on the second, the seller may refuse shipment under the second contract and is not liable for damages therefor.
    Appeal from Brown district court.
    Opinion filed January 6, 1912.
    Reversed,
    
      F. M. Pearl, for the appellant.
    
      Means & Archer, for the appellee.
   Per Curiam:

This case is almost parallel with the case of Lumber Co. v. Lumber Co., ante, p. 131, 119 Pac. 321, and the decision therein is controlling.

There is practically only one difference between the two cases to be considered. In that case the default of payment by the purchaser for a part of a carload of' lumber was for a carload included in the same contract, for the breach of which the purchaser sought to recoup damages. In this case the default .of payment of the $100 was due upon another and independent shipment and contract. It is evident, however, that the purchaser in this case refused payment of the $100 for the purpose of offsetting the amount against damages which he claimed upon the other contract. He therefore elected to connect the two transactions and to avail himself of the benefits thereof. In this situation, the seller is entitled to connect the transactions in the same manner. The various other questions in this case are discussed in the case referred to and decided therein. The claim of the appellant against the ap-pellee is admitted as pleaded, and an offset of damages is set up, for which the appellee recovered judgment.. The appellant was within its rights in refusing to extend appellee further credit, and the judgment for damages occurring by reason thereof is erroneous.

The judgment in favor of appellee against appellant is reversed, and the case is remanded with instructions to render judgment in favor of the appellant as prayed, for in its petition.  