Scott v. Whitney

Cole, J. Under the pleadings in this case, there can be no controversy as to the amount of lumber delivered on the contracts ; for there was really no issue between the parties on that question. The plaintiffs alleged in their complaint, that they had delivered on their first contract two hundred, and seventy-four thousand, eight hundred and eighty five feet of merchantable white pine lumber, and on the second contract three hundred and eighty thousand, five hundred and seventy-two feet, according to the estimates made by Weber. In his [506] answer, the defendant practically admits that this quantity of lumber was delivered; but he claims that there should be a deduction, under the custom or usage relied on in his defense, of one-half of the sheeting. But, as the estimates of Weber are really relied on by both parties as correct so far as quantity is concerned, it is obvious that all questions relating to that point drop out of the case or become immaterial. It is admitted that the lumber delivered on the first contract did not contain forty per cent, of what is designated in the agreement as “first and second clear plank,” and fjhere-fore did not answer the warranty. The amount of damages which the defendant was entitled to recover on account of the failure to deliver lumber of the quality called for, was a question litigated on the trial, and upon which considerable testimony was given. The circuit court charged as to the rule of damages, that the defendant was entitled to recover the difference in value between the amount received, of the quality described in the contract, and the amount of lumber of the quality received. There was no exception taken to this charge in respect to the measure of damages, and it was clearly correct. It was claimed, however, on the part of the defendant, that "Weber w'as to inspect as well as measure the lumber; and upon that point the court, in substance, directed the jury, that if they found from the evidence that both questions were referred to him as an umpire, then his statements as to quality and quantity would be binding on the parties, unless they were impeached for fraud or mistake. Uo serious fault is found with this direction. The defendant set up in the answer, that at the time the lumber was estimated by Weber, it was, and for a long time prior thereto had been, the custom in the city of St. Louis, among all persons buying and selling lumber in the pile, to estimate the lumber in the pile full — as by such estimate the drawing, hauling and piling is paid; but that the seller deducts from such estimate! one-half of the sheeting contained [507] in the lumber thus estimated, to make tlie same bold out measurement. In respect to this defense the court below ruled, that evidence of the custom in St. Louis that one-half the sheeting should be deducted, was inadmissible, unless such evidence showed that the parties had knowledge of the custom, or it had existed so long a time as to warrant the presumption that the parties contracted with reference to it. This ruling was in accordance with the doctrine laid down by this court in Power v. Kane, 5 Wis., 265; Hall v. Storrs, 7 id., 253; Marshall v. Am. Express Co., id., 1; Keogh v. Daniell, 12 id., 163; Lamb v. Klaus, 30 id., 94; and need not be further considered. 'Whether sheeting was merchantable lumber or not, was a question fairly submitted to the jury upon the evidence. These observations dispose of all of the points in the case which we deem it necessary to notice. By the Oourt. — The judgment of the circuit court is affirmed. A motion for a rehearing was denied.