Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-01-11

HShuieu a. ehde ooom IN any year bore
to the whole amount of logs and other
, lumberso handled. The defendant, by
virtue of the contract, operated the
bcoms in 1893. 1894. 1895 and 1896. II
1894 and 1895 all the logs and lumb r
handled belonged to the defendant. In
1888, two-thrds, and in 1896. nine-tenths
of the logs and lumber handled be-
longed to the defendant. The plain
tiffs boomage works were already
completed when the contract was made.
but no renewals, improvements or adj
ditions were made by 1t subsequently.
Held that by virtue of Revised Stat
utes. Chap. "a, Sect. 10, an action of
asSumpSit VIII lie to recover the un-
paid rental. though the parties have
never been able to agree upon the
items which constitute the met COST:
also that al action begun in 1898 is not
premature. though there had been no
determination" by the parties of the
net cost OF the works or of the proper
ton of rent chargeable to the defend
ant.
An auditor to whom the case was
referred found that, the net cost of the
works was S29.30p. The court is of
opinion that as to this matter the re-
port of the auditor, which is prima
facie proof. has not been impeached
rebutted. dsproved or controlled by
the other evidence in the case, and that
It must stand as decisive.
The court holds that the plaintiff is
entitled to recover of the defendant
the full 10 per cent. Of the met cost"
or $2950. for each of the years 1894 and
1873, when the defendant owned all of
the logs handled, and two-thirds of the
10 per cent, or $193333. in 1898, and
hlne-tenths of the ten per cent, or $2627.
in 1896, these being the ..proportionate
parts ascertained from the proportions
which defendants logs bore to all tho
logs handled in those years: and that
the defendant is entitled to no more
rental. Such is the effect of the exnIicit
language of the contract.
, The court further holds that the com
tract, properly construed, furnished no
OASIS Tor the recovery by the plaintiff
on account OF its claim for annual depre-
agreed with its predecessor in title at ali
Time to maintain in good order and re
pair SAID booms and piers" substantially
as they We're constructed The plaintiff
had also agreed with its predecessor that
1t would without discrimination or pref
erence receive, sort, hold boom and de-
liver the logs and other lumber of all
persons at all times thereafter The de-
PENDANT. however! in these respects hao
agreed with the plaintiff onlyn to .'oper-
ate said business as said Run7ford FAILS
Boom Company is now required to carry
on said business. 1t is considered by
the court that the defendants agreement
related only to the latter duty owed by
the plaintiff to its predecessor, viz: the
maintenance of the booms and piers in
ana rat N of no nd 4 h.
good order and repair. And were it 9th
erwise, the plaintiffs remedy for this al
legged breach of contract would be cove
nant broken. and not assumpsit, as in
this case.
Judgment for plaintiff for $40, SO and
interest on the several instruments OF
rent from the times they respectively be-
came due. viz: on $l95333 from Dec l.
1893: on $2930 from Dec. l. 1894: on $3.50
from Dec. l, 1885; and on $2637 from Dec
l. 1896