
    Bextel and others, Respondents, vs. Franks, Appellant.
    
      April 15
    
    May 11, 1948.
    
    
      
      E. C. Smith of Tomahawk, for the appellant.
    For the respondents there was a brief by Frank E. Hebert and Robert G. Hebert, both of Tomahawk, and oral argument by Robert G. Hebert.
    
   Hughes, J.

While it is true that under the circumstances which surround this contract there might ordinarily be a question of whether there was such a substantial performance of the contract as to entitle the appellant to an interest in the produce of his labors, no such defense was pleaded by him; and inasmuch as his sole defense was an attempt to emasculate the contract and claim the right to half the logs without sawing, which he was entitled to only after sawing, the trial' court was entirely justified in concluding that since that was the only defense offered, it must be his best. The court rightfully determined the answer to be sham and entered summary judgment in favor of the respondents.

The appellant ^offered no counteraffidavit in opposition to the respondents’ motion for summary judgment, and the evi-dentiary matters therein stated must be deemed to be uncon-troverted. From the affidavit it appears that the only interference with the appellant by respondents was in refusing to allow him to remove one half of the logs before completing performance of the contract.

Since the record shows that the appellant abandoned the contract without cause or excuse, the trial court was right in entering summary judgment in favor of respondents.

By the Court. — Judgment affirmed.  