Pratt v. Ducey

38 Minn. 517 | Minn. | 1888

Vanderburgh, J.

The logs in controversy were cut and “banked” in the winter of 1886. After a part had been cut and hauled, a deputy of the surveyor general was sent to the woods to survey them. The court finds that he was unable to make an accurate scale of all the logs, because of the position of the same in the river where they had been hauled. Upon the 8th day of March following, defendant made a contract with the plaintiff for the purchase of the logs, the same to be scaled “on the bank” by the surveyor general or his deputy. The deputy-surveyor commenced scaling in January, and continued to scale the logs as they were hauled, until March 15, 1886. The plaintiff produced in evidence the scale-bill of the surveyor, to establish the amount of logs for which he claims to be entitled to recover in this action, which is for an unpaid balance of the purchase price. It is objected that the bill on its face shows that only a part of the logs therein designated were actually scaled. The plaintiff claims to recover for 10,097 logs, representing 1,577,960 feet, as returned by the surveyor’s bank scale, while the defendant, though he admits receiving the full number of logs therein designated, (and more,) insists that it appears on the face of the bill that only a portion of the logs were actually scaled, and that the plaintiff has furnished no proof of the number of feet contained in those logs. The following is all that the record of the scale shows on the subject:

Logs. Feet.

Sealed by Deputy Chas. Barr, hauled by Chesley & Lindsay, - ..... 5,712 900,430

Averaged, ------ 2,066 324,360

Hauled by Lang, ------ 2,319 353,170

10,097 1,577,960

The defendant refused to be bound by this scale, and so notified plaintiff, but drove all the logs into the boom, and caused them to be resurveyed there, the new scale showing an increased number of logs bearing the proper mark, but only 1,404,290 feet. We agree with the trial court that the use of the word “Averaged,” opposite the separate number in question, shows, in the absence of any explanation or further evidence, that the number of feet indicated was ascertained, not by actual measurement, but by “averaging” these logs with others; and, since the defendant admits a liability for an amount considerably in excess of the remaining items in the bill, it is difficult to see how this scale-bill can be of any service in ascertaining the exact amount of logs “banked.” It was presumably too late to remedy the defect in the bank scale, and that scale cannot be considered evidence in respect to logs not surveyed. The plaintiff has offered no other proof of the amount, and there is no reasonable ground for disputing the accuracy of the boom scale, by which the defendant is willing to abide. It follows, therefore, we think, that the trial court was right in adopting it as the basis of his estimate of the balance due plaintiff; and the plaintiff was, in any event, allowed more than by his own evidence he showed himself entitled to.

Order affirmed.