38 Wash. 88 | Wash. | 1905
The plaintiff brought this action ag’ainst the defendant to recover boomage charges alleged to be due for services, rendered by the plaintiff in booming and rafting logs belonging to the defendant. The complaint contained eight causes of action, all of which were very similar in their nature. In the first and fourth causes of action, the plaintiff claimed boomage charges on logs placed in the river above tide water, and also upon logs placed in tide water. The remaining causes of action were to recover boomage charges upon logs placed in the river above tide water. At the trial the jury returned the following verdict:
“We the jury empaneled and sworn in the above en
The court overruled a motion to set this verdict aside, computed the boomage charges on the logs placed in the river above tide water, at the rate of $.50 per thousand, and upon logs placed in tide water, at the rate of $.35 per thousand, and rendered judgment accordingly. The court, in giving judgment, ascertained the quantity of logs placed in the river above tide water, and the quantity placed in tide water, by reference to the complaint. The defendants appeal. If the informal verdict returned in this case could be made certain by reference to the pleadings, or to the admitted facts in the case, we would feel inclined to sustain the judgment. This, however, cannot be done, upon the record before us. The answer admitted that the respondent boomed a quantity of logs for the appellant, being about the quantity mentioned in the complaint, but denied each and every other allegation contained in the paragraphs of the complaint, which set forth the number and quantity of logs boomed, of each class, thereby putting in issue the quantity of logs placed in the river above and below tide water. Nor is the uncertainty in the verdict removed by reference to the testimony. The testimony in no place refers to the quantity of logs placed in the river above or below tide water. It relates exclusively to the reasonableness of the charges made for boom-age. The verdict of the jury is therefore uncertain, and cannot he rendered certain by reference to other parts of the record. In .order to- render a judgment, the court was compelled to find facts which were put in issue by the pleadings. This the court was not authorized to do. Nor this error, the judgment is reversed, and a new trial granted.
