Kelly v. Berry

LtoN, J. On tbe question whether the logs were transferred by the plaintiff to the defendants through Coon & Barlow’s satisfaction of the contract, as alleged in the answer, there is a conflict of testimony. The question was fairly submitted to the jury, and they answered it adversely to the defendants. We cannot say that it was wrongly determined. The learned circuit judge instructed the jury that if, when the undertaking of Coon, Bax-low, North, Baldwin and the bank, was delivered to the defendants, they made no further objection to receiving the logs on account of the liens thereon," but were satisfied, on that point and willing to receive them under such circumstances, but then refused to receive them because they were not such logs as the contract called for,” then, if the logs were in fact such as the contract called for, the plaintiff could recover, otherwise not. We think this instruction correctly states the law of waiver as applicable to the case. Manifestly, if the plaintiff, when he offered to deliver the logs, secured the defendants to their satisfaction against liens, and removed their objections to accepting the logs because of such liens, and the defendants refused to accept them on the sole ground that the logs were defective in quality, they ought not to be permitted to excuse or justify such refusal by asserting the existence of the liens. In the course of his charge to the jury, the judge said: “ I think the defendants could have safely taken a delivery of the logs, the mark being recorded in their name, but would not be compelled to pay any portion remaining unpaid on the contract until the liens against logs had been discharged, and by taking a delivery of them from Kelly they could be made liable to the parties having liens to the amount of the value of the logs only.” This is claimed to be error. But whether it implies an unsound legal proposition, or not, it seems to be a mere casual remark, and of little importance in the case. The judge did not say that the defendants were legally bound to accept the logs notwithstanding the liens, but only that lie [673] thought they might have accepted them with safety; and we think the fair construction of the charge is, that the defendants were not bound to accept the logs subject to the liens, unless they waived the right to make that objection. "We do not perceive how the jury could have understood the charge differently. Hence, the remark.above quoted cannot, in any view of the case, work a reversal of the judgment. It appeared that a small portion of the logs in question scaled less than four to the M. feet; that is to say, they averaged less than 260 feet each. Thte evidence tends to show that the price of these logs was fixed by'the surveyor general specified in the contract at $8 per M. feet; and that he appraised them from the scale bills, without an actual inspection of the logs. He testified that he was able to determine the sizes of the logs from the scale bills in his office, and to fix the comparative value of the small logs, if not required to consider the quality thereof. The scale bills were verified by other testimony. The judge refused to give an instruction prayed on behalf of the defendants, to the effect that, unless waived by the defendants, the contract required that the surveyor general should make an actual inspection of the logs before appraising them. The contract implies that all of the logs to be delivered under it were to be of merchantable quality, and the parties evidently, contemplated that the comparative value of the small logs should be determined on that hypothesis. If so, no inspection was necessary. It seems to us that the simple problem submitted to the surveyor general, by the contract, was this: On the basis of $10.50 per M. feet for merchantable logs which will average 250 feet each, what is the value of those merchantable logs which the scale bills show average less than 250 feet each? The scale bills showed the size of the logs to be appraised, and the contract furnished a complete basis for making the appraisal, without an actual inspection. For these reasons, and because the contract contains no ex [674] press provision requiring tlie surveyor general to inspect the logs, we conclude that the judge properly refused the proposed instruction. "We discover nothing further in the charge, or in the refusal of the judge to give instructions asked on behalf of the defendants, which requires special notice. On the trial many exceptions were taken on behalf of the defendants to the rulings of the court on objections to the admission of testimony. Many of these are disposed of by the views above expressed, and many others are quite unimportant. It is unnecessary to discuss or even state these rulings. It is sufficient to say that we fail to find in any of them cause for reversing the judgment. By the Court. — Judgment affirmed.