8 Me. 32 | Me. | 1831
delivered the opinion of the Court.
Every legal contract is to be carried into effect according to the intention of the parties thereto. In this case, the contract, on the part of the plaintiff was to furnish a quantity of mill-logs, cut and hauled x>n the banks of Kennebec river near the forks ; — on the part of the defendants, it was to pay three dollars for each and every thousand feet of merchantable boards, which said logs may be estimated to make. No mode is prescribed, in the written contract, by which this estimate is to be made; and it is understood that, from the nature of the article' to be delivered, the exact contents could not be ascertained until after the logs had been taken down
This usage explains the intent of the parties, and not being in opposition to established principles of law, or in contradiction to the express terms of the written instrument, is deemed to form a part of the contract, as much as though actually incorporated into it, or expressly referred to. Williams v. Gilman, 3 Greenl. 267; 2 Stark. Ev. 453. Every instrument is presumed in its general terms to refer to the known and established usage respecting the subject to which it relates, and should be construed accordingly. 2 Ev. Both. 214. We are then to construe this contract as if it read “ The said Coopers, on their part, agree to pay the said Ileald three dollars for each and every thousand feet of merchantable boards that the above named logs may be estimated to make, such estimate to be made by the Brunswick scale.” Considering that the jury have found the usage, and that the parties contracted in reference to such usage, they are bound by it, and the plaintiff is entitled to three dollars per thousand according to that scale, unless the defendants entered into the contract under such circumstances as will absolve them from the whole or any part of it. They contend that the estimate by the Brunswick scale is erroneous ; — that its application to logs of the size of those delivered under this contract gives a larger quantity of boards than can be actually produced ; and that the plaintiff is, therefore, not entitled to the benefit of that part of the contract growing out of the usage, but must be holden to the strict quantity, or at farthest, to the estimate made by the Beamed scale, which is understood to be more exact in giving the quantity
The presumption is, from these facts, that the defendants knew the general size and quality of the logs..they purchased, and also the character of the scale by which they were to be estimated; and if they did not, that it was in consequence of a want of such diligence as the law presumes every man, having a due regard to his own inter-, est, would be likely to use.
It is said that the Brunswick scale is erroneous in favor of the vender, when applied to logs of a diameter insufficient to make five hundred feet, but that when applied to logs of a larger size,, it is em roneous in favor of the purchaser.
It is evident that a scale founded on general principles cannot, in its application, be equally exact in ail cases, If a given per cent. is to be deducted, as waste, from the contents of the log, it is apparent that if the deduction be correct in a large log, it cannot be so in a small one. But it is not found, and certainly it is not to be presumed, that the defendants, dealers in lumber as they are, could be ignorant of a fact so apparent and important to the interests of -all persons engaged in the lumber business. If they knew the character of the Brunswick scale, and they are to be presumed to have known it; if they knew, or with reasonable diligence might have known, the size and description of the logs they purchased, and of this there can be no doubt 5 and if they agreed that the amount of these logs should be estimated by the Brunswick scale, which the
But the defendants contend that the allowance made by the plaintiff to reader the contents of the logs equal to merchantable was insufficient. It appears that sixty feet on a thousand was allowed for this purpose, and the defendants contend that the additional allowance, which they claim as necessary to make the lumber equal to merchantable, would be more than tbe difference between the Brunswick and Learned scales, and that this constitutes a defence to the action. How stands the case relative to the allowance ? At the time that was made, the logs were open for examination, and were, examined by both parties ; and upon such examination, the defendants themselves proposed six per cent, as the proper allowance, winch was acceded to by the plaintiff and accordingly the allowance was made and accepted.
There is no pretence of any concealment of facts, or that the plaintiff had any greater or better means of ascertaining the quality of the logs than the defendant had. The parties stood on equal ground, and having settled that question themselves, it is not open for re-examination j certainly not in the absence of all suggestion of fraud or mistake. If there was any error in the estimate, it arose from defect of judgment, and as well might a party to any contract of exchange or purchase of property allege such a cause for anuuliug Ills contract as could the defendants in this case. But the mistake in estimating the quantity of lumber which the logs would make arose in a very different manner.
We are of opinion that the ruling and instructions of the Judge were correct, and- that there must be Judgment on the verdict.