92 Wis. 5 | Wis. | 1895
By the terms of the contract the plaintiff sold to the defendant 20,106 logs then in the Willow and
It appears that the logs were taken from the different camps some four or five miles apart, one of which was called the “ McIntyre Camp,” and the logs from that camp were put in the Tomahawk river. The others were banked by Wilson, and by him put into the Willow river. It is, in effect, conceded that McDonald honestly and fairly scaled all the logs at the McIntyre camp, and that there were by such scale 17,003 logs, containing 1,455,001 feet. The balance of the logs were banked and put in by Wilson at the other camp; and according to the statement of the plaintiff to the defendant, and the testimony of McDonald, there were of those logs, by his scale, 3,103 containing 357,045 feet. It appears that McDonald first went to scale the Wilson logs near the mouth of the creek in February, 1892; that he" was alone, and actually measured by the scale all he
We must conclude that the trial court was fully justified in holding that McDonald’s scale was fair and honest, and made in the usual and customary manner. The logs were purchased by the McDonald scale, and the only other way that the defendant could relieve himself from paying the full amount of that scale, according to the contract price, was to have a rescale as provided in the contract; and then he could have only a deduction of one half of any shortage found.
The court found on that branch of the defense to the effect that the logs were rescaled by Sarohet with the knowledge and without the objection of the plaintiff,, and hence that he was bound by it. The trial judge, in his opinion, states, in effect, that he was in great doubt as to what his holding should be in that regard; but, upon equitable conr siderations, he thought it best to hold that the plaintiff had waived the provision of the contract as to the selection of a person to rescale the logs. The language of the contract is “ that they may be resealed by a competent scaler acceptable to both parties and appointed by the district scaler.” This is not a bill in equity, but is an action at law on contract. The contract did not imperatively require a rescale, but simply provided that one might be made by a competent scaler acceptable to both parties. This implies that the plaintiff should have notice of the proposed rescale, and an opportunity to accept or object to any person who might be suggested for the appointment of such scaler. Sarohet, mentioned in the findings, was employed by the corporation of
The result is that the plaintiff is entitled to recover for the quantity of logs mentioned in the contract, as scaled by McDonald, at the contract price, less the three payments mentioned; that is to say, he is entitled to recover $1,'747.02, with legal interest thereon from September 1, 1892.
By the Court.— On the defendant’s appeal, in so far as the judgment is based on findings in favor of the plaintiff, the judgment is affirmed; and on the plaintiff’s appeal the judgment is reversed, and the cause is remanded with directions to enter judgment in favor of the plaintiff and against the defendant in accordance with this opinion..