144 F. 905 | U.S. Circuit Court for the District of Middle Pennsylvania | 1906
The plaintiff sues for timber sold to the defendants, who admit that they are liable; the only question being how much. Her claim at the trial was something over $32,000, of which nearly $15,000 was conceded to be due after allowing a payment of $5,000 made since suit was brought. The jury gave a verdict for $27,710.80, which is between the two, although somewhat favoring the plaintiff. There was abundant evidence to sustain this, and the jury evidently gave the case careful consideration. There must be some strong reason, therefore, for disturbing the result.
The timber was to be $6 a thousand. The dispute is as to the quantity. By the agreement between the parties on which it was sold this was to be ascertained, according to Scribner’s rule, by a competent scaler to be selected by the plaintiff. A large part of the logs, 3,261,614, was so scaled, and this with a slight qualification both parties accept. But unfortunately no scaler was designated by the plaintiff until the defendants had been several months at work, and it is over this that the parties are at odds. Yothers says that he spoke to Mrs. Johnson about putting some one on, but that she told him to go ahead and scale himself, which he proceeded to do; his partner, Crawford, acting in his place when he happened to be away. The plaintiff gave evidence to show that the scale so made was not correct, being much less than it ought to have been, of which the jury seem to have been convinced.
The contention oí the defendants is that as the quantity admittedly was to be ascertained by a scale of the logs as they came to the mill,
But complaint is made that they were told it was for the defendants to clear up the matter of this deduction, and that, unless they did so to their satisfaction, the scale must stand. Undoubtedly the plaintiff was only entitled to recover for timber cut from her own land, the amount of which it was for her to show. But thfe mill was located on her property,, and was there for the purpose of sawing her timber, which the defendants agreed to do before they sawed any other, and of which they were to keep- accurate account. Presumptively all that came to the mill was hers, as was unquestionably a large part of it. And, if there was an intermingling of other logs by which uncertainty was introduced, it was for the defendants, who brought this about and who had the means for identifying them, to distinguish and make clear how many of these there were.
Included in the verdict was $3,484.14 of interest, which was calculated on the amount found dire, from January 1, 1904, to December 18, 1905, when the last payment of $5,000 was made, and not up. to the date of trial. If interest was allowable at all, there is nothing to complain of in this. It is contended, however, that the plaintiff was not entitled to any because of a replevin suit which she brought in thq common pleas of Elk county, Pa., in which she claimed to own and sought to recover the logs out of which this controversy grows. This, replevin was brought in June, 1903, and was not discontinued until shortly before the payment which has been spoken of in December, 1905; thus overlapping the present action. In thus denying the defendants’ title and seeking to get back the property from • them, it is claimed that the defendant is not in shape to demand interest. But .the replevin was brought before the job was completed, after the.
It is said at the outstart of this opinion that the suit was for timber sold to the defendants; but it was not all for that. There were other small matters broughtt in. The point is made with regard to some of these that the plaintiff was allowed to recover more than she claimed in her declaration. This is based npon the statement of claim which she submitted to the jury where it appears. But the statement so made was in accordance with the evidence, and, not having been objected to at the time, it is too late to do so now. To save all question, however, leave is asked to amend the declaration so as to have it correspond -with the statement in these particulars. This is certainly all that can be asked, and will be allowed. The right to amend in this way, even after verdict, not going outside of the case as it was tried, is too well established to be doubted or denied.
The rule for a new trial is discharged.