Pitre v. C. R. Short Lumber Co.

LECHE, J. The only question involved in this case is the proper manner of computing the measurement of saw logs. Certain timber belonged to plaintiff but through error, was cut and taken by defendant. Defendant has agreed to pay and plaintiff has agreed to accept twelve dollars per M for the timber thus cut and taken. The cause of action in this case is very similar to that of Peter et al. vs. Owl Bayou Cypress Co., according to the statement of facts recited in that decision as reported in 137 La. 1067, 69 South. 840. It was held in that case that in the absence of any express agreement to the contrary, it is fair to both parties to take the mean diameter of the. log and that it is not fair to the seller to measure the diameter only at the small end. The mean diameter is obtained by measuring the diameter at the large end and the diameter at small end by adding the two diameters together and by dividing the total by two. That was the method pursued by plaintiff in obtaining his measurements in' the present suit. It is equitable to both parties and it is sanctioned by the cited decision. The method adopted by defendant, which is said to be in accordance with the custom of many timber buyers, was to measure the diameter at the small end and to increase that diameter by 2 inches every 16 feet. regardless of the actual size of the increasing diameter in the direction of the lower or larger end . of the tree. The latter method rests more or less upon mere estimates, while the first is based upon real and actual measurements. The District Judge waS of the opinion that plaintiff’s computation was more in consonance with fairness and in that view we fully concur. Appellant calls our attention to the fact that the measurements taken by plaintiff include the bark and that according to the system of measurements upon which plaintiff relies, it is conceded as “usual to allow, on account of the bark, for oak l-10th or l-12th part of the circumference; for beech, ash, etc., less should be allowed”. The actual measurements of the ends of the logs were made in person by Winfree on behalf of plaintiff, and Funderburk on behalf of defendant. The other two witnesses Welsh and Short merely wrote the figures as they were called by Winfree and Funderburk. But Winfree and Funderburk disagree as to whether the bark was included in taking the measurements, [368] and we have no other me'ans of ascertaining whether it was or not. It was encumbent upon plaintiff to prove the correctness of his claim and to show with certainty that the measurements were taken inside the bark and as he has failed to do so, the doubt must be resolved against him. A deduction of l-12th, in, the absence of evidence as to the kind of trees measured should be a fair compliance with the rule. Wé believe that a deduction of l-12th should be made from plaintiff’s measurements and that the amount of plaintiff’s claim should accordingly be reduced from three hundred and fifty-two 17/100 dollars to two hundred and twenty-seven 56/100 dollars. For these reasons the judgment appealed from is amended by reducing the amount thereof from three hundred and fifty-two 17/100 dollars to two hundred and twenty-seven 56/100 dollars and as thus amended it is ordered that said judgment be affirmed appellee to pay costs of appeal.