Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-12-22

and landed at that date and t,,e hal
ance of the contract price was to be
paid when the logs were driven in free
of all lien claims.
November 20. 1902. the Lonslnys gave
Ito defendant this order: please nav
the Manufacturers National Bank of
Lewiston Maine all that nav be due
us under the terms OF contract with
you for hauling and driving logs un-
til otherwise notified by the Directors
!of said Bank November a6. 1902, the
defendant wrote the plaintiff bank:
I'VE have received an order from ].
S. Longley. & Son. to paw YOU such
amounts as shall become Cue on their
contracts with us this season, and will
forward to you such amounts as be-
come due, as requested"
According to the Scale bills of the
scaler mutually agreed upon 2,76S, $50
feet of logs were hauled and driven
during the logging season of 1923,
amounting at the contract price to
$15.22146. The defendant, however,
had from time to time made payments
to the plaintiff bank aggregating $16.-
600. A large quantity OF the logs cut
during the winter OF 1923 was left
over on the yards in the woods
April l6. 1903 the defendant, upon
the representation of the Longieys
that the money was necessary to pay
labor bills. gave them q check for
$4,000. The Longlcys still further re-
lquestcd assistance from defendant to
pay the men on the drive. This re-
quest was not directly granted, but
on May 1. 1908, w. ]. Lanigan who was
| in defendants employ, loaned the
Lonsleys $4,000 taking their note there
for secured by q mortgage of their
teams and numbering outfits. May .,
| 1903, this note and mortgage was
transferred by Lanigan to the defend
ant.
September %. 1909 the Longeys and
defendant made an agreement where
| by the logging contract was cancelled.
and the defendant was to take over
their supplies and outfits at $3.50, pay
| them 500 on account of dam they
had built, and pay them $3.50 per
| thousand for yarding the logs left
over unhauled. In pursuance of the
new arrangement the defendant took
the logs on the yards, amounting, ac-
cording to the scale of the scaler
agreed uron, to 1,7OS,S70 feet, and
credited the I.ongleys therefor, at $3.50
per thousand. with $5,9S1S5, together
also with the $3.50 for the supplies,
and the 500 on account of the dam.
According to the defendants account
there was still a balance against the
Longleys for the operation of 1922
The plaintiff claims, % thai there
was much larger quantity of logs
| hauled and driven in the season of
1922 than the scale bills show, and
| (2) that the defendant is liable to it
for the yarding of the leftover logs,
and, further, that the scale of those
| logs was too small. Held:
| /. Where a scaler agreed upon by
the PARTIES uses an assistant who
measures and scales logs in accord
ance with the scalcr's instructions and
directions, and who enters on scale
pads the separate contents of each
| log scaled by him, which pads the
scaler examines and tests from tinAe
to time, and signs. adopts and uses
as the memoraEdcr of his scale, and
Identifies them in court as the pads
so made by his assistant and adopted
by him, such pads are admissible with
out producing the assistant who made
them.
.. Tho scale of Il Scaler agreed upon
by the parties is not to be disregarded
because an assistant performed some
OF the work necessary to be done in
making the scale. The data obtained
by his assistants in their measure
ments and scale Of the logs, and the
entries and memoranda thereof made
by them, acting under his direction,
and inspected, corrected and adopted
by him, may be used by the scaler in
ascevtaining the quantity of logs
scaled.
8. In the absence of fraud or math-
cmatical mistake the scale Of scaler
agreed upon by the parties is conclu-
sive, and the burden is upon the party
attacking the scale to prove such fraud
Or mistake.
T. The evidence offered in the case
at bar to set aside the scale of the
scaler agreed upon by the parties falls
far below that degree of proof essen
tial to establish fraud. bias or prejudice
on the part of the scaler. Neither is
| it shown that there was any mathe-
NAUTICAL mistake. The return of the
scaler agreed upon as to the quantity
of logs hauled and driven in the sea
son of 1929, is therefore binding up
on the parties in this action.
s.. The obligation of the defendant
to the plaintiff arose upon the contract
expressed in the letter of November
2e, 1902, and was therein limited to the
payments of such amounts as should
become due under the logging contract
for the ensuing season, the logging sea-
son of 1923.
| G.. Under the express terms of the
logging contract nothing became Que
during the season of 1923 for, or on
account of, the leftover logs.
| I. The defendant is not liable I'M
der a uuantum meruit O because it's
liability was expressly limited to such
amounts as should become due during
the season of 1929, and (2) because.
ldisregarding the order, the Longleys
themselves could not have recovered
on a uuantum merut for yardins the
left-o logs. since it was no fault
| of tho defendant that thew were left