This appeal is against the decision of the learned judge in dismissing a counterclaim on the ground that respondent has not breached the agreement.

By an agreement in writing dated February 14, 1974 appellant sub-contracted to respondents who were logging contractors, the extraction of timber logs from an area of timber land of approximately 717 acres situated at Wulles Dorf Forest Reserve. Under the agreement appellant was to pay respondents 60 cents per cubic foot of timber logs so extracted by respondents and such payment would be made upon delivery of the timber logs at a pre-determined site. Respondents claimed appellant was indebted to them in the sum of $11,062.36 as at April 10, 1974. Appellant denied the claim and counterclaimed for general damages to be assessed and special damages of $191,938.55. During the hearing appellant admitted respondents' claim as part performance of the contract and judgment was entered for respondents for $11,062.36. The trial proceeded on the counterclaim. Both parties agreed the only issue would be whether respondents have totally performed the contract.

For the purpose of this appeal, it is sufficient to refer to the following clauses in full:-

"4. The sub-contractor shall at its own cost and expense provide all necessary workmen, fuel and all other necessary equipments for the said work of chain-sawing and tractoring, and the accommodation of the same.

6. The sub-contractor shall be entitled to payment from the contractor for all the commercial timber so worked by the sub-contractor upon the delivery of the same at pangkalan.

9. A further sum of six cents (6 cts.) per cubic foot of timber shall be paid by the contractor to the sub-contractor for the use of the contractor's log-loader if and when shall be required by the contractor.

11. The contractor hereby covenant with the sub-contractor that they shall not sub-contract the same work to any other person or persons or company other than the sub-contractor and that this agreement shall remain in force until all the commercial timber have been extracted from the said Land."

The main term of the contract of service was chain-sawing and tractoring as stated in the preamble. Clause 2 defines the service of chain-sawing and tractoring to mean all work of felling trees, debarking, cross-cutting of logs and hauling by tractors. Under the agreement the respondents were to deliver the timber to the "pangkalan." Respondents understood this to mean a place designated as a collecting point for the timber designated as a collecting point for the timber. But, appellant said it meant the dumping point on a river bank. The preamble also states that appellant sub-contracted to respondents only a "portion of the work" namely, chain-sawing and tractoring. The loading of timber from the collecting point to the river bank was the responsibility of appellant. That seems to be the reason for inclusion of clause 9. To ascertain the intention of the parties the learned judge examined the agreement closely. He also referred to a letter dated May 21, 1974 which indicates in no uncertain terms that the responsibility of transporting the timber to the river bank is on appellant. Therefore, with respect, the learned judge rightly rejected the contention of appellant. There is no appeal against his finding on this point.

Appellant maintained that clause 9 is a vital term of the agreement. Without a log-loader he would not be in a position to transport the timber to the river bank. The learned judge did not consider clause 9 to be a term as it was foreign to the agreement. If it is a term it is ancillary to the main term. Once respondents had performed their "portion of work" clause 9 ceased to have any effect. This applies to clause 4 also. The respondents would be entitled to discharge his workmen and withdraw his equipment and so forth. The offer to appellant to make use of the log-loader "if and when required" cannot be of indefinite dur