Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1920-08-21
AUGUSTA LOCALS
CHIEF JUSTICE CORNlSH'S
DECISION N CASE, vlES
vs.. KEnnEBEC LUMBER co.


whom was referred the case IF
Blaine S. Files OF Augusta vs.. the
kennebec Lumber Co. reported mis-
findings on Friday and allows TO Nj.
Niles. the plaintiff, the sum of
se02l.4S with costs and interest there
on since the date of the writ. October
1s. 1917. Hearing was held in the
matter before Chief Justice Cornish
on May Il. 1890. Pattangall & Locke
Of Augusta are attorneys for the
plaintiff. and the firm of Mclean.
Fogg & Southland arc counsel for the
defendant company
The plaintiff brought suit for the
sum Of sl4.so7.s4. claimed to be due
for logs delivered to the defendant
under contract. The defendan: re-
sisted payment on the ground that
the full amount of logs called for by
the contract had not been delivered.
and further that the plaintiff had
not in good faith attempted to cut
and deliver the fun amount. The
amount actually delivered was ap-
proximately 2.eno, 900 feet under a con-
tract TO deliver about 500, 900 feet
of fir logs
On these facts the PLAINTIFF contend
cd that he had in good faith at
tempted 10 perform the contract:
That, the word about" in the con-
tract allowed the Naria ton existing
here, provided there was a good faith
attempt 10 get the entire amount;
and that If there had not been a le-
gal performance of the contract 80
that some amount should be deduct
ed for failure 10 fully perform, the
deduction should not be over s. per
thousand for the amount undeIiyer-
cd because the market price at the
time of the failure Of delivery was
not more than g per thousand more
than the price specified in the con-
tract.
The defendant contended. on the
other hand. that Mr.. Eiles was gull
" of bad faith and did no, a,,emot
TO perform his contract because NJ
the fact that the market was going
up and that consequently as a mat
ter of Law. because Of his bad fsilil
ne could not recover in any action.
ana further, that if il shosld he
louhd that Mr.. Niles did attempt TO
perform the contract in good faith
the difference between the contract
prlce and the market price al The
time OF the failure to deliver was a,
least 40 per thousand. and tina, in
that case the defendants damage ~
be allowed and set off constituted
an amount larger than the plaintiff,
CAIN of sl4so7.43, and that conse-
quentiy on that basis the pIaintifr
was not entitled to recover anytbina
The decision rendered by Chief
Justice Cornish as referee finds in
substance:
LIST. That Mr.. Tiles did in good
faith attempt to perform his ro,,-
tract and get the amount of logs for
the defendant required by the CON
tract.
Ind. That he did not furnish al
the logs which the contract required
and that the practice of many }um.
oermen and mill owners to accent
a, delivery of 50 per cent. as por-
1ormance of the contract under m.
meaning OF the word about va
moi sufhciently proved to h, cus-
tom Of the trade so that it had thc
force of law.
5rd. That consequently thu defen-
dant could claim a failure 10 fuI,,
perform the contract by reason o,
the variation in delivery and even
tnough the plaintiff attempted to
perform in full. -
Hh. That the amount which VA :
% be deducted for the yaria+ion ~
oehvery was 3 per thousand on that
variation which reduced plaintiffs
recovery OF sso21.s4 in place OF 81.
S'7,s4 the amount sued for,