
    LITTLE v. BARRY.
    Lumbering Contract — Modification — Construction — Breach.
    Where a lumbering contract, which originally provided that defendants should stock plaintiffs? mill and that plaintiffs should saw for defendants exclusively, is modified to permit plaintiffs to “manufacture their own stock,” the parties should adjust by agreement the portion of stock each shall thereafter furnish; and where no such adjustment is made, and no notice is given defendants as to the portion required from them, no action will lie for breach of their contract.
    Error to Benzie; Aldrich, J.
    Submitted October 4, 1900.
    Decided November 13, 1900.
    
      Assumpsit by John Little, John R. Little, and Thomas Little, copartners as Little & Sons, against Thomas W. Barry and Thomas Kenny, copartners as Barry & Kenny, for the breach of a lumbering contract. Erom a judgment for plaintiffs, defendants bring error.
    Reversed.
    
      McAlvay & Grant, for appellants.
    
      D. G. IP. Warner and George G. Qovell, for appellees.
   Montgomery, C. J.

On the 10th of April, 1893, the defendants were the owners of a tract of timber adjacent to Edgewater, in Benzie county. On that date a contract was entered into between the parties as follows:

“That said parties of the first part, for and in consideration of the covenants and agreements on the part of the second parties, hereinafter mentioned, hereby covenant and agree to and with the said parties to manufacture for them, at Edgewater, lumber for the term of four years from on or about May 1, 1894, and shingles for a term of five years from said date; to saw said second parties’ logs into lumber and shingles of such grades as they may direct from time to time, and deliver over the rail of a vessel said manufactured lumber and said shingles, properly packed and branded; and the said first parties further agree to saw for no other parties, or allow their mill to be used to saw for other parties, during the time above specified.
“The said second parties, in consideration of the above covenants, hereby covenant to and with the said first parties to stock their mill at Edgewater as follows: For the lumber mill, for the term of four years from on or about May 1st, at the rate of two million feet per year, or eight million in all; for the shingle mill, for the term of five years from said date, such an amount of logs as will be required to keep two hand machines running during the running season of each year. To pay said first parties for the lumber properly manufactured, and delivered over the rail of a vessel, at the rate of three dollars and twenty cents per thousand feet, board measure, for the hardwood lumber, and two dollars and twenty-five cents per thousand feet for the hemlock and pine lumber; and to pay for the shingles properly sawed, packed, and branded, and delivered over the rail of a vessel, as follows: Cedar shingles, firsts, 92{- cents per thousand; cedar shingles, seconds, 55 cents per thousand; pine shingles, firsts, 82£ cents per thousand; pine shingles, seconds, 55 cents per thousand.”

Some delay occurred in getting the shingle mill into operation. On October 17, 1894, the contract was modified as follows:

“That the said second party is hereby relieved from furnishing and delivering under the agreement hereto attached, and of which this is a part, more than one million feet of logs per yéar, reserving the privilege and right to furnish the entire amount mentioned in said contract, according to the terms thereof. The said first party is no longer bound by that clause in said contract which prohibits them from using their lumber mill to saw for other parties during the time for carrying out said contract, shingle mill excepted, for the manufacture of their own stock only. But it is understood that nothing herein contained shall change or affect said contract in any other particular than is expressly mentioned herein.”

This action is brought for a breach of contract in supplying the shingle mill with timber according to the terms of the contract. It was conceded on the trial that defendants had fully complied with their contract to furnish logs for the sawmill. The plaintiffs recovered a judgment for $3,510, and defendants bring error.

It is contended by defendants’ counsel that .the supplemental agreement relieved the defendants from supplying stock for shingles, at least to this extent: That the contract left the parties to adjust by agreement the proportion of stock each would furnish the shingle mill, and in the absence of any agreement, and in the absence of any notice by plaintiffs as to the amount of shingle stock they proposed to manufacture each year, the defendants would be left to use their own judgment as to stocking the shingle mill. The circuit judge took a different view, and held that the original contract made it the duty of defendants to furnish such a quantity of shingle timber as would be required to keep two hand machines running, and that under the amended contract their duty continued. This ruling presents the question of the greatest difficulty in the case. The amendatory contract is not as clear in its terms as could be desired. Plaintiffs’ counsel state their position as follows:

“Under the agreement the court justly held that, so far as the shingle mill was concerned, it was agreed ‘ that the plaintiffs might manufacture shingles for themselves, but it was not modified to permit the plaintiffs to manufacture for any other persons than the defendants.’ While the defendants contend that the plaintiffs could manufacture their own stock of shingles a-s they desired, it would be absurd for any person to say that under this contract they could keep their mill running, manufacturing their own shingles at all times, and ignore this contract as to the manufacture of shingles for the defendants, as they undertake to contend in their brief. Defendants virtually say in their brief that the plaintiffs might have used this mill continually for manufacture of their own stock. If such was a fact, they would be under no obligations whatever to manufacture any shingles for the defendants; and, if this contract or agreement can be so construed, we frankly admit that the plaintiffs have no case, and had no case when it was tried, and that the plaintiffs have been in error in their understanding of the same, and that the court and jury were in error at the time of the trial.”

This concession is not, in our view, too broad, when it is considered that the owner of timber must make preparation to get out the timber some months in advance. How are we able to say that the plaintiffs did not reserve the right to manufacture shingles on their own account for any considerable portion of the time without reading it into the contract ? It is in evidence that they did use the shingle mill for some portion of the time in sawing their own shingles. ' In doing so they were plainly acting upon the express authority given by the amendatory contract, and as plainly they were putting it out of their power to manufacture shingles for defendants up to the full capacity of the mill. At what point, then, did plaintiffs’ right to continue the manufacture of shingles on their own account cease ? It clearly was a right inconsistent with a duty to manufacture to the full capacity of the mill for defendants, and we think it equally clear that the obligation of defendants did not extend to furnishing for manufacture material which the plaintiffs were not bound to manufacture when delivered. If the plaintiffs had given notice to the defendants of the amount of shingle timber desired, it would have become defendants’ duty to furnish it within the limits of the capacity of the mill; but, in the absence of such notice, we are unable to sa.y that the defendants were in default, and, judging from the plaintiffs’ concession, it is to be assumed that no such notice was given. In any view, the charge of the court stated the defendants’ obligation too broadly.

As the view expressed apparently disposes of the case, we do not deem it necessary to discuss the other questions presented.

Judgment reversed, and a new trial ordered.

The other Justices concurred.  