16 How. Pr. 467 | N.Y. Sup. Ct. | 1858
There is some evidence to sustain the referee’s third- finding. Peter Bortle, a witness, states, that “ about twenty-five of the oak logs were unsound and not used, not fit for lumber; Powell drew them, away; one or two pine logs were bad.”
Christopher A. Brown testifies, that Powell gave away two logs. Frederick D. Morehouse, says, “ I sawed one of Powell’s logs for Porter, and charged the sawing to him.” Bansom Baker says, “ four or five of the oak logs were rotten or dozy.” There is also some evidence to sustaiU that part of the 14th finding excepted to by the defendant.
The witness Cramer, though he gives the measurement in feet, yet says that Tie does not suppose Tie applied his rule to one quarter of the pieces, says it was bad lumber to measure; and he was vexed at it, and that he called it bad manufactured lumber. His principal, Mr. Gilbert, on the contrary, says it was pretty fair manufactured lumber.
The exception to the 9th finding, “ that the plaintiff’s ad-count was correct,” is probably the main issue in the case; áüd all the exceptions in the case are proper to be examined in reference to this issue.
It would be a sufficient legal answer to this exception, to say, that the defendant has no issue in the pleadings that denies the correctness of this account. The only pretence of a denial is the first answer, which is a negative pregnant, arid amounts to no denial of any single allegation. He denies that the plaintiff performed on the days, and at the times and to the extent or quantity mentioned. This is no denial of anything certain. This alone would entitle the plaintiff to an affirmance of the judgment; still, if it could be seen from the case, that injustice would be thereby done, the court might permit an amendment of the pleadings to help the case in this respect. But if we look into the merits of this question, from the evidence there is enough to justify the report of the referee.