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