Gleason v. Estate of Beers

[583] The opinion of the court was delivered' by- Ross, J. But three items named in the report of the referee are in contention. Item 22 of the plaintiff’s account, we think, was properly allowed by the County Court. The intestate owned and operated a custom saw-mill. He thereby invited the custom of the plaintiff. The plaintiff delivered at the mill the logs named in this item, to be sawed, for which he was to pay the intestate an agreed compensation. This was a bailment of the logs to the intestate for the mutual benefit of the bailor and bailee. This obligated the bailee to the exercise of ordinary care in keeping’ and manufacturing the logs. They were in the possession of the intestate, to be accounted for by him or his estate, either as logs or manufactured lumber. The estate has not accounted for the logs included in this item, either as logs, lumber, or as lost or destroyed without the fault of the intestate. Ordinary care requires that the estate should either produce the logs or the lumber, or show they were taken from the possession of the intestate by the plaintiff, or were lost or removed without the fault of the intestate. This is the ordinary rule in this class of bailments. Story Bailm. s. 442 et seq. The question of contributory negligence is not raised by the facts found by the referee. It is not found that the plaintiff intermeddled with any of the logs in contention after he delivered them into the custody of the intestate, nor that he was called upon to do anything in regard to them. Hence the plaintiff neither did, nor omitted to do, anything so far as found from which negligence on his part could contribute to the loss of the logs or lumber. Item 23 of the claims made by the estate was properly disallowed. It is a charge for manufacturing about one-fourth of the logs included in plaintiff’s item 22. As by that item the plaintiff is only allowed for the value of the logs unmanufac-tured, the estate should not be allowed for their manufacture. We think the intestate’s charge for sawing,, on the facts found by the referee, should be reduced $1 per thousand, as was done by the County Court. The agreement between the [584] plaintiff and intestate was that tbe plaintiff was to pay only the cost of sawing, which is the sum allowed by the County Court. This agreement is found to hare been a part of the agreement by which the intestate and the plaintiff and others rebuilt the intestate’s mill. The facts found that the plaintiff did not put in a clapboard machine, as he reserved the right to do ; that he did not saw any clapboards, nor procure any to be sawed, for the intestate, do not vary the price which the intestate was to charge the plaintiff for saAving boards, especially Avhen it is not found that the intestate ever had any lumber to be manufactured into clapboards, or ever called upon the plaintiff to put in the clapboard machine, or manufacture any clapboards for him. So far as is found by the referee, the plaintiff did not break or disregard his part of the agreement in regard to rebuilding the mill and manufacturing clapboards for the intestate at cost. If he had broken his agreement in this respect it would have laid the foundation for a claim in favor of the estate against the plaintiff for damages, rather than give the estate the right to charge a greater price than agreed for sawing boards for the plaintiff. We find no error in the judgment of the County Court, and that judgment is affirmed.