
    Merrimack,
    April 7, 1903.
    Blodgett v. Johnson.
    A contract whereby the lessee of a sawmill sells its future product is termi- * nated by the destruction of the mill by fire; and a provision for the renewal of such contract does not give the vendee a right to the output of a mill subsequently constructed by the vendor as owner, upon the site of the old one.
    Assumpsit. Trial by jury and verdict for tbe plaintiff. Transferred from tbe October term, 1902, of tbe superior court by Wallace, C. J.
    The plaintiff contended that be bad seasonably renewed tbe contract described in tbe opinion, and claimed damages for a breach thereof because tbe defendant refused to deliver to him tbe output of tbe Johnson mill. Tbe defendant’s motion that a verdict be directed in bis favor was denied, subject to exception. Tbe question whether tbe plaintiff seasonably exercised the right of renewal was submitted to tbe jury, with an instruction that after the fire tbe plaintiff bad tbe right to renew bis contract; and to this instruction the defendant excepted.
    
      Albín Shurtleff, for tbe plaintiff.
    
      Burleigh $ Adams and Mitchell Foster, for tbe defendant.
   Remick, J.

Tbe defendant sold the plaintiff all tbe merchantable slabs and edgings to be produced at the Hall mill in Lincoln, N. H., for tbe space of one year, and tbe plaintiff was to have tbe right to renew tbe contract for tbe length of time tbe defendant should run tbe mill. Tbe contract was entered into November 2, 1898. Tbe plaintiff bad tbe output of the mill for tbe first season, and tbe mill was destroyed by fire May 10,1899. In tbe summer and fall of 1899, tbe defendant built a new mill on substantially tbe same site as tbe old one. Tbe plaintiff claims that he is entitled, under tbe renewal clause in tbe agreement, to tbe slabs and edgings produced at tbe new mill. Tbe defendant contends that tbe destruction of the Hall mill by fire terminated tbe existence of tbe contract.

Tbe contract contained no stipulation on tbe part of tbe defendant to rebuild tbe mill in case it was destroyed by fire; and it is conceded that if tbe defendant bad not rebuilt, tbe contract, as to future product, would have been dead to all intents and purposes. So far as tbe plaintiff was concerned, tbe defendant was not only at liberty to rebuild or not as be saw fit, but be was at liberty to build a shoe shop, or any other kind of manufactory, in place of the sawmill. And whatever he built, he was at liberty to encumber it and its entire product in order to provide for its construction. It is impossible to reconcile the plaintiff’s contention with these unquestionable propositions. Attempt to do so would lead to the illogical conclusion that the defendant was free and bound at the same time.

Moreover, the stipulation was for product of the Hall mill— a mill then owned by the Lincoln Lumber Company and leased by the defendant. The new mill was built and owned by the defendant, and called the Johnson mill. The capacity of the Johnson mill was almost twice the capacity of the Hall mill. Before building it, the defendant purchased the land upon which to build it, made contracts with other parties to supply the mill,, and received $6,000 from one Stebbins to aid him in building, upon an agreement with Stebbins that he should have six per cent for the use of the money and should be the selling agent of the mill, receiving five per cent commission therefor. It cannot be reasonably said that the parties intended the stipulation for product of the Hall mill to apply to such new and changed conditions.

The exception to the instruction is sustained, and the result is that there should be judgment for the defendant for fifteen dollars.

Case discharged.

Chase, J., was not present at the argument and took no part in the decision: the others concurred.  