130 P. 1134 | Or. | 1913
delivered the opinion of the court.
At the argument but two questions out of the many reserved in the record were presented to the court for consideration. One was the office and effect of the custom in such cases as relied upon by the amended answer. The other was the admissibility of the ledger of the Long Lake Lumber Company, together with certain papers called scale cards, purporting to show the scale of the logs sawed by the lessee of the Long Lake Lumber Company at itff mill.
On the first cause of action the ultimate material question in dispute was what was the amount of logs cut and delivered under the contract mentioned. It appears in evidence that the mill alluded to in the contract where the scale was to be checked and verified was the property of the Long Lake Lumber Company. One McGowan was at the time running the mill as lessee under contract to saw the logs into lumber at so much per thousand feet of the lumber. The defendant was interested in the mill company, and bought the logs from the government forest
Some of the testimony from McGowan, the employer of the pondmen, is here quoted:
“Q. Mr. McGowan, in making this scale of the logs that were delivered at the mill under the contract between Mr. Mason and Mr. Melhase, were the logs scaled that were sawed ?”
“A. Well, if they were not scaled, they were supposed to have been guessed at.”
“Q. Supposed to have been guessed at? What do you mean by that?”
“A. Our man was supposed to scale all the logs, but he must keep the mill going, and, if it was a case of neglecting one, he neglected the log scale, but he was supposed to scale very liberal as to the amount of feet in any log.”
“Q. What amount of logs would it probably be that he would not have time to scale? What class of logs, large or small?”
“A. Small. You see, sometimes when the carriage would get to him, they would be out of logs, and, as soon as the logs were hauled up, he would not have time to scale the logs, so he would roll one onto the carriage, and start sawing, and then he would judge the number of feet there was in that log, without putting the rule onto it.”
“Q. Do you know whether they did that with reference to all the logs or not?”
“A. That was my instructions to do that. You see the Long Lake Lumber Company claimed our tally was overrunning the log scale pretty strong, and we were cutting mostly two-inch, and we figured on getting an overrun, so I did not want the men to judge a log under its footage. I would rather they judge it over, because, if they judge it under, it would look worse for me on the board measure tally, so they were instructed to be liberal as to the footage in the log; that is all.”
“A. I did not look into that. That was up to the man on the logging deck.”
“Q. What position did that man hold in the work?”
“A. We called him ‘pondman.’ He was supposed to gather up the logs in the pond and bring them to the mill.”
“Q. Was he working under your supervision?”
“A. Yes, sir?”
“Q. Was that work done by one man or various people ?”
“A. During the season?”
“Q. Yes, sir.”
“A. By various people.”
By the Court: “He may state, if he knows, what they (the tally slips) are.”
“A. You want me to state if I recognize these figures ?”
By Mr. Stone: “Q. I want you to state, if you recognize those slips, what they are?”
“A. I recognize what they are meant for. The idea is this: That there are lots of these tallies I have never seen the logs scales. There would be some of these I would recognize. I don’t recognize these figures here, although my man may have written down these figures, yet I don’t know that.”
“Q. Well, then, that scale that was made of those logs was made under your supervision, was it?”
“A. Well, my man, the man I had, was hired to bring those logs up into the mill, any logs, and he was also instructed to scale the logs, but, if he could not do both, then he had to keep the logs up there.”
. It was from these slips that Mr. Huson, the secretary of the lumber company, compiled the ledger offered in evidence.
Books regularly kept under certain circumstances may
Finding no error in the matter complained of, the judgment of the circuit court is affirmed. Affirmed.