Magee v. Smith

101 Wis. 511 | Wis. | 1899

Maeshall, J.

There was no controversy but that there was a scaler mutually agreed upon, or but that, so far as he performed duties contemplated by the contract to be performed by him, his decision was final and conclusive, subject to the supervision provided for in the contract. Therefore there was no call on that subject for a finding by the jury. Probably, the intent of the parties was, by their contract, to submit the grading of the lumber necessary to a determination of what should be thrown out as worthless, called mill culls, to the judgment of the scaler mutually agreed upon, as a necessary incident of his duty to scale the merchantable lumber. If that intention had been carried out-the parties would have been bound by the result the same as by any other part of the scaler’s work contemplated by the contract. The difficulty which led to the litigation was that the duty of grading the lumber, by the act of one of the parties to the contract, not consented to by the other, was withdrawn from the scaler and referred to the lumber inspector, and that the scaler, against the protest of plaintiff, followed the inspector’s directions instead of acting on his own judgment, keeping track, however, of what he understood to be the disputed class of lumber, thereby enabling the parties to intelligently settle their differences in regard to that at some future time. There was no attempt on the trial to impeach the measurement made by the sealer. That was submitted to without question. It was the work done by the scaler, following the directions of the lumber inspector, and which was withdrawn from the judgment of the scaler, which was the subject of controversy. So the question argued at length in the brief of counsel for the appellant, on points suggested by exceptions found in the record, that the measurement of lumber by a scaler mutually agreed upon cannot be impeached except for fraud or mistake, does not arise in the case. FTo person mutually agreed upon appears to have passed upon the question of what lumber should be excluded as mill culls. That was, therefore, a legitimate subject for settlement independent of the scaler’s work. It was a proper subject for litigation in this suit and for submission to the jury on the evidence produced tending to show where the truth lay. It involved the duty simply of saying from such, evidence, what part, if any, of the 143,307 feet of disputed lumber was not of the class called mill culls. On that the jury said, in effect, that the amount Avas 95,538 feet. True, the evidence Avas not such as to enable the jury to determine the amount with exactness, but it furnished much light on the subject, sufficient, as appears, to enable them to come to an intelligent conclusion to a reasonable certainty, that the greater part of the disputed product, and not less than the amount named by them by their verdict, was merchantable lumber. Looking at the evidence as it appears in the record, it is by no means clear and satisfactory, but the weakness of it is not so great that we can say there is no credible evidence to support the conclusion arrived at, and warranting a disturbance of it on that ground.

By the Court. — The judgment is affirmed.