Opinion op the Court by
— Reversing.
Appellee, James Hatcher, brought this suit against P. L. and Asa P. Cline, R.'S. Booten, James Arnett and Henry Blankenship. The suit was instituted upon a note signed by P. L. Cline only, dated December 27th, 1897, for the sum of $543. To secure the note, P. L. Cline executed a mortgage upon five yoke of oxen, and appellee charged that Asa P. Cline was aiding his co-defendant, P. L. Cline, to hide the cattle; that they had sold some of them to Booten, Arnett and Blankenship, and asked for an attachment against the cattle. The prayer of the petition was for a judgment against P. L. Cline for the sum of $543 with 6 per cent, interest, and that the lien against the property described be enforced and the property sold to pay his debt, and for a specific attachment against the property and a judgment for his. cost and all general and special relief. The Clines named in the petition together with E. L. Cline filed an answer and counterclaim admitting that P. L. Cline executed the note and mortgage, but denied that the note was just and unpaid and denied the grounds for the attachment. They alledged that in the spring of 1897, appellee and Asa P. Cline entered into a logging contract; that Asa P. Cline commenced getting out logs under the contract; that afterwards, July 27, 1897, the contract was reduced to writing and is as follows:
"This contract made and entered into this the 23rd day of July, 1897, by and between James Hatcher and A. P. Cline: The said Cline agrees and binds himself to take from the stump a certain lot of poplar, cucumber ash and oak trees now on the 3rd Fork of Big Creek, Pike County, Kentucky, and deliver same on suitable pits to load ón ears, at or near month of said 3rd Fork, •and the said Cline is to build pits, cut, saw, knot, and*713 trim all logs in first-class, workman-like order. • For which the said Hatcher is to pay five cents (5) per cubic foot; said trees to- be laid off after they are cut and felled by said Hatcher, or some one designated by him before they are sawed into logs, and after said logs are delivered on pits they are to be measured according to the rule and custom of measuring at Catlettsburg, Kentucky, that is, to cut all defects to make logs good; logs under 24 ft. in length to be measured at the small end- and all logs 24 ft long, one-third of the distance from the small end; and all logs 36 ft. in length and over to be measured in the middle; all logs to be measured both ways with calipers and divide the difference, throwing off all fractions of inchesi, all logs to- be measured even feet.
‘ ‘ Said Hatcher is to furnish said Cline corn delivered at his tram road on said Big Creek at mouth of 3rd Fork, at 75 cents per bu. and corn chop at 80c, said Cline is to pay for the sacks that contain said corn and chop. Said Cline is to pay off all his expenses in hauling said timber in the store of James Hatcher. Said Cline is to work 10 or 12 yokes of good cattle in hauling said timber- and if said Cline fails to complete said job by December 25, ’97, then said Hatcher has the right to put other teams to work at said hauling at the expense of said Cline. Said Cline is to begin work at once and continue same with said teams, and at any time said Cline fails to do satisfactory work, or it becomes evident that Cline can not complete said job by December 25, ’97, then said Hatcher has the right to put other teams to work at said job, after giving said Cline three (3) days notice in writing. Said Cline is to haul the timber from the head -of the creek first, that is -to say, beginning at the head of the creek and work the timber as it comes down the creek until the job is completed.
“If any said logs When measured on pits has odd fpe+ canse-1 bv sawing, then said Cline is to pay said Hatcher (10) ten cents per cubic foot for all odd feet or loss caused by said negligence or bad sawing.
“When said job is completed then said Hatcher is to pay said Cline balance due him at price above stated. If said Cline should fail to complete said job by Deeem- - ber 25, ’97, it is not to interfere with price agreed upon. ’ ’
The parties continued to execute this contract up to the date of the note sued on, when it was transferred to
“Wherefore plaintiff having replied prays as in his petition and all proper relief.”'
Appellants filed a rejoinder controverting the affirmative matter of the reply, and set forth additional matter, which is not necessary to mention, and prayed as in their original answer and counterclaim. Appellee then filed a sur-rejoinder in. which he controverted the affirmative matter in the rejoinder, and closed with this .prayer:
“Wherefore, having fully sur-rejoined, plaintiff prays as in his original petition, and for all general and special relief and will ever pray.”
Soon after the commencement of the action, the case was referred to the master commissioner upon appellant’s motion, to take proof and report the existing state of accounts between the parties. There was a mass of testimony introduced. The commissioner made his report and brought appellants out in debt to appellee in the sum of $670. In arriving at this sum the commissioner did not give appellants credit for any part of the $300 charged against them for the building of the tram way nor for the trucks and cars used on the tram way which were left in appellee’s possession when appellants were compelled to abandon the job, nor did he give them credit with any part of the over charges for supplies in the account of appellee which amounted to $3,-200, nor did he give them credit for any part of their claim for damages for being delayed in their contract for over a month when they had to keep their cattle at
Upon a trial of the case, the lower court gave appellee a judgment for his note of $543 and interest, and for the $670 found by the commissioner, sustained the attachment and directed the.. proceeds of the attached 'property to be applied to the payment of the judgment 'for'$543 note, but it seems that the commissioner paid it to'appellee and took.his receipt as if it were to be applied [to-'the payment of the $670. This was an error of the pommiisioner, rather than in the judgment 'of the court.
Appellant’s counsel claim they are.entitled to a re
Por the error in rendering judgment in behalf of appellee for fhe $670, the judgment is reversed and remanded, with directions to the lower court to set that much of the judgment aside.