Page:Federal Reporter, 1st Series, Volume 10.djvu/864

862 FEDERAL REPOSTEB. �was given it was spolien of and recognized by Smith as a mortgage to secure Hubbard's advances. �After the mill was built, Bellew went on and eut timber from the land and made it into lumberand shingles, but, failing to pay for the land and lumber as he had agreed, the other party to the contract, in 1878, brought suit in the circuit court of St. Croix county to enforce a specifie performance of the contract, and obtained a decree for that purpose, from which an appeal was taken by the plaintiffs in that suit to the supreme court, where the judgment of the circuit court was affirmed. See Marsh v. Bellew, 45 Wis. 36. Hubbard was not made a party to that suit. The circuit court, on the trial in that case, found among other things that the written contract was by a subse- quent verbal agreement, made in or about September, 1875, between the parties, modified by giving Bellew permission to erect the mill on either one of three pieces of land at the option of Bellew, to-wit, the N. E. N. W. 34, the N. W. N. W. 34, or the S. W. S. W. 27, instead of on the land named in the contract as that to be purchased by Bellew, and that it was agreed that for the 40-acre tract upon whioh the mill should be situated, Bellew should pay as purchase priee thereof the value of the stumpage thereon, at the rates provided for in the written contract, as modified by such paroi agreement, and that for the other two 40-acre tracts he should pay, in addition to the value of the timber thereon, at said rate, the sum of five dollars per acre, amounting to |400, for both of said last-named 40-acre tracts; and that such modification was without any new consultation exeept the agreement on the part of Bellew to purchase two additional 40- acre tracts at the rate of five dollars per acre. There is evidence to show that it was agreed between Bellew and Smith that Bellew might select either one of the above three forties for the mill site, and that he should buy the other two forties and pay five dollars per acre therefor in addition to the pine stumpage. But I am not prepared to say that there was any modification of the written contract so far as the location of the mill was concerned. On the contrary, I see noth- ing in the contract to prevent Bellew from selecting any forty named in the contract for the mill site, whether it was one of the forties he was to purchase and take title to, or one of those from which he was to buy the timber. �It seems to me that Bellew was at liberty, under the written con- tract, to select any forty named in the contract that should suit his purpose of location of the mill best. The language is general ; and I ��� �