Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1912-09-20
SuStainS the Exception Of
The Defendant.
In Kennebec County Case In
vOIving Log Scaling,
Where Verdict Was Given for the
Plaintiff In Superior Court.

A rescript was handed down
Thursday. by the law court in the
Kennehec county case OF w. -
Hutchins eft al. vs.. Charles ID. MERRITT
sustaining the defendants exceptions
The case went up from the kenne-
bee county superior court, IN Whlch
the jury rendered a verdict of SS2.9S'
The rescript, which is drawn by Chlei
Justice Whitehouse, is as follows
This is an action to recover dam
ages alleged to have resulted from the
negligence of the defendant In sealhS
certain logs. The plaintiffs made a
written contract with one Robert W.
Foster to cut and haul the merchant
able logs on the timber lands owned
by them in the town of Guilford. ana
therein stipulated that the timber ana
wood should "be scaled by disin-
terested sworn surveyor to be paid
by the plaintiffs. Foster was to re-
ceive $3.50 per thousand feet Tor cut
ting, yarding and hauling the logs
and the evidence tended to show that
the fact that the plaintiffs We're to
pay the scaler was taken into con-
sideration in fixing the price of cut
ting and hauling. 1t was not in con-
troYersy that the defendant was Sc
leeted by the parties to that contract
to survey the logs cut hereunder,
and that it was mutually agreed that
his scale should be final ard binding
between those parties as the basis OF
payment under that contract.
The jury rendered a verdict for the
plaintiffs of sS29S, showing that the
discrepancy found by them was ls,44o
feet.
1t was expressly admitted by the
plaintiffs that the defendant was an
experienced and competent sealer and
there was no allegation or evidence of
fraud or collision on his part in max
ing the scale 1t is admitted that
there was no fraud or mathematical
mistake which would release the
plaintiffs from paying Foster for cut
ting and hauling according to the de-
fendant's scale. But it was con-
tended that he negligenuy omitted
either to count the logs so that he
knew the number of them, or to scale
a sufficient number to estimate the
average contents. but carelessly ae-
cepted the count made by the team
sters and averaged the number OF
feet per log from pencil marks found
by him upon the logs.
The defendant admitted that by
reason of the difficulty in counting the
logs as they were piled in the yards,
he did not actually count all of them,
but contended that he counted suf-
ficient number of them to satisfy his
Judgment, and that the tally kept by
the teamsters of the number of pieces
hauled by them was correct. He
also earnestly eontended that he
scaled enough of the logs of the vari-
Gus sizes to satisfy his judgment that
he had obtained a fair average of all
the logs, and introduced evidence TO
support both of these contentious.
In view of the fact that the proper
discharge of the duties of scaler
involves the exercise of skill and
judgment, as well as absolute inn
partiality on his part, and of the
mutual agreement of the parties that
the defendant should scale the logs
and that his scale should be final and
conclusive. the defendant contended
that he must be deemed to have act
ed in the capacity of an arbitrator, OF
quasi arbitrator, between the parties
to the contract.
The presiding judge instructed the
jury as follows:
Il say, too, that if upon all the
testimony in this case, upon one side
and the other, weighing it as l have
suggested You should find from a
fair preponderance of the evidence,
that you are convinced thereby that
the defendant in this case was negli-
gent or careless in the scaling OF
these logs, and that through his
negligence and carelessness a mis-
scale was made or mis-statemeht
was made of the amount of the scale.
and that thereby the plaintiffs paid
any amount of money. under the
original contract. that then this de-
PENDANT is liable
The question thus presented is in
some respects one of novel impression
in this State and in all respects one
of more than ordinary importance in
determining the duties and RESPONSE
bilities of Observation-Disclosures and those
agreed upon to perform judicial func-
tions. as we'll as the rights of those
affected by their acts.