McNealy entered into a contract with Wagner to pay $250000 as a lump sum for all timber present in a given area that Wagner would remove for McNealy. The contract estimated that the volume in the area would be 780,000 board feet.Wagner also had provisions in the contract that made no warranties as the amount of lumber and that he would keep whatever timber was not harvested if McNealy ended the contract before the harvesting was complete.The $250000 was to be paid in three advances.McNealy paid two of the three advances but withheld a third payment and ended the contract because he said there was not enough timber.Wagner file suit for the remaining one third of the payment.McNeely said Wagner could not have the remaining one third of the payment as well as the transfer; he had to choose between the two remedies. Is he correct?