212 F. 713 | 2d Cir. | 1914
Stone, the plaintiff below, entered into a contract to cut, haul and deliver on the bank of the Connecticut river at the rate of 2,000,000 board feet per year all the soft wood in a specified territory estimated to contain from 6,000,000 to 8,000,000 feet. The material provisions of-the contract are:
“The timber is to be delivered at the rate of 2 million board feet per year and to continue at this rate until the land is all cut over.
“Scale. — The timber is to be scaled sound by the Maine or Holland rule, the scaler furnished and paid by the company and boarded by Stone. And Stone agrees to board such agents for the company as it is necessary to send over the works to attend to its proper cutting.
“The Connecticut Valley Lumber Company agrees to pay Eugene Stone six dollars and fifty cents ($6.50) for each and every thousand feet of logs properly cut, hauled, landed and scaled under the terms of this contract in payments as follows:
$3.00 per M on logs yarded
2.00 “ “ when landed
1.00 “ “ on May 1st
.50 when the job is completed.
“Fifty cents per thousand is to be Reserved until $2,000 is withheld, and this account is to be held by the company until the job .is completed and the territory cleaned according to the provisions of this contract.
“Payments to be by check or draft monthly. Stone to be paid on or before the 15th of every month for work done the previous month with reservations stated above. Interest to be charged Stone at 6 per cent., on drafts maturing before May 1st, and interest to be credited to him on drafts maturing later*715 than May 1st, from May 1st to date of maturity. Final settlement to be made May 1st, at end of each logging season.
“Stone agrees to mark and stamp the logs with the company’s regular mark and to land them in such manner that they may be properly sealed.”
The timber as it was cut was yarded; that is, stored in places in the woods. The defendant sent a scaler there, who remained until November 10th. After that there was no scaling as called for by the contract, the plaintiff being paid monthly by the defendant for logs yard-ed apparently on estimates. He did employ a scaler himself, who never reported to the defendant. As he took no exception to the amounts paid on the logs yarded, it is to be presumed that both parties agreed to a modification of the contract as to the scaling in the woods, making conclusive the scaling at the river bank.
At the end of the season, and after he had been paid in accordance with the scaler’s weekly reports made to him and to the defendant, the plaintiff claimed that he had cut, hauled and delivered about 350,000 more feet than the scaler reported. Payment of this alleged shortage being refused, he declined to go on with the contract, and brought this suit to recover $6.50 per thousand for the alleged shortage; so much of the expense as he incurred in building roads in the territory to be cut as is properly apportionable to the uncompleted term of the contract and the 50 cents per thousand feet which the company retained on the amount it admitted he had delivered. No claim of bad faith was made against the company defendant, but only against the scaler at the river bank.
Judgment reversed.