Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1889-02-02
Rescript.

The following important rescript has been
received from the law court by W. c.
Choate, Clerk of Courts for Kennebec Co ::
KESNEBEc COUNTY:
James Walker vs.. Joseph S. Bradstreet ct al.
REscRIPr.
Per Curiam-The defendants in the win
ter of los0-l cut a quantity Of logs on the
MoIy stream. a tributary of the kennebec
river, and had them marked, scaled and put
into the stream and driven down to the East
Branch, where they were to be taken by the
kennebee Log Driving Company. In June,
1881, they sold his mark of logs to the plain
tiffs and delivered to them the scale bill.
which showed "2723 pine logs making 599,
l60 feet" and as part of the same trsnsac
ton gave them this written guaranty:
"GARDINER, June l, 1881.
sold to Mary & Walker = mark Of pine
logs, "A. H. w. the scale of which We
guarantee in merchantable lumber"
This writing was not in fact made out and
delivered till the following January. but the
effect 10 the same as il done at the time of
the sale
1t seems to be agreed that the logs went
upon the plaintiffs risk Immediately upon
the conclusion of the bargain and sale, and
were from that time under their control.
The parties also seem to understand the
written guaranty alike, viz That the logs
of that mark then in the river below the
mouth of the Moxy would equal Soy, 100
feet of merchandise lumber.
The plaintiffs assert in the writ that all
the logs of that mark in the river only
squaled 50+ $40 feet of mere hantable lum-
Der. They brought this action to recover
compensation for the deficit Of "a 400 feet
at $40 per NJ, the agreed price They re-
covered 81 ,004 by verdict in September,
1887. Allowing for the interest from June
/, 1881. which of course made part of the
verdict, it indicates that the jury found that
there was in June. 1881, a shortage of nearly
5000 feet-was there any evidence in sup
port of such finding,
Mr.. Palmer. a scaler at Gardiner of long
experience, testified that he scaled all the
logs of this mark at Gardiner and found only
5o4 $40 feet of merchantabls lumber. q
shortage of "a 400 feet. Daniel Gray, the
sawyer who sawed the logs, testified that it
would require discount of thirt, per cent.
from the full .cale to make a correct scale
o. mc rchantAble lumber. The defendants
scale bill was on = basis Of eighteen per
cent discount, which would make full
scale $780, $50 feet. Deducting thirty per
cent. the merchantable lumber would be
5ll AIS feet, . shortage from $780, feet
of nearly 5000 feet. Taking the driving
bill scale Of 704, 1874 feet and deducting
thirty per cent, the merchantable lumber
would be less than 500 900 feet, or . short
age of nearly 100, 900 feet.
The above evidence, if trustw orthy. JUST
fed the verdict il the Jury made enough
allowance for breakage aud loss Of logs in
booming, driving, etc. They did allow, it
seems some 81 900 feet from Palmer's bill, |
or nearly four per cent. We doubt if this
was allowance enough under all the crcum-
stances, but the question of such allowance
was peculiarly 4 question for the local jury.
They could determine it much better than
we. On the whole, after protracted consid-
ration. We do not and ourselves fully con-
WINGED that the verdict was wrong.
Mr.. Gray's opinion IS to the quantity of
lumber in these logs WAS COM
petent evidence. He had examined the log,
and had sawed them. He had q large expe-
Renee in scaling and saving logs The
quantity of merchandise lumber in a given
number of logs is always largely . matter of
opinion, even with professional scalers, until
the lumber is actually eawed out of the logs.
Motions and exceptions overruled.