Brown v. Gerrell

Felton, J. In the trial of this case the action was treated by the court and parties as one to recover a $375 balance due on a contract wherein the defendant agreed to pay The plaintiff $15 per thousand to saw logs of defendant into lumber. The plaintiff contended that he sawed 45,000 feet of lumber. The defendant contended that the plaintiff 'sawed only 32,680 feet. The plaintiff undertook to prove by his own testimony and that of his sawmill operator that 45,000 feet were sawed. .The plaintiff testified that he had scaled some of the logs which were sawed and that his sawmill operator had scaled some, and that the record of each scaling was placed in a book kept by the sawmill operator. The sawmill operator testified that he had scaled some of the logs and made a record in the book, and that he would testify that 45,000 feet were sawed for the defendant. The record book was not produced. This evidence was not sufficient to prove that there were 45,000 feet of lumber.cut. The testimony of each witness for the plaintiff as to how many feet the other had scaled was hearsay, and neither testified as to how many he himself had scaled. Since neither testified as to the number of feet he himself had scaled, and the evidence of each witness for the plaintiff as to how many total feet had been scaled was based on hearsay, there was no competent evidence authorizing the finding that the plaintiff had sawed 45,000 feet, and the verdict for the plaintiff for $375 was therefore without evidence to support it. The court erred in overruling the motion for a new trial. Judgment reversed. Sutton, C. J., and Parker, J., concur.