Godkin v. Obenauer

Grant, J. (after stating the facts). It would be necessary to discuss some of the assignments of error, provided the plaintiff had made such a case as should have been submitted to the jury. Counsel for the defendants contend that the alleged errors are immaterial, since the court should have directed a verdict. Counsel for the plaintiff contends that this question cannot be now raised, as the record does not contain all the testimony. We must hold that the record contains all the testimony under the following decisions: Hitchcock v. Burgett, 38 Mich. 508; Ironwood Store Co. v. Harrison, 75 Mich. 201. Whether or not this be so, the sole basis on which plaintiff asked to recover was the estimate. He introduced no testimony of actual measurement. It appears that the first cargo contained 296,252 feet, and the second 201,671 feet. Before the first cargo was completed, Parish informed plaintiff that the lumber would not hold out according to his estimate. When the first cargo was loaded, Parish gave plaintiff a certificate of inspection, which he inclosed to his agent in Chicago, [95] with directions to sell. He at the same time informed him that he would require a vessel to carry about 200,000 feet for the second cargo. Plaintiff, telegraphed for a vessel to hold that amount, and, as already shown, the cargo amounted to a little over 200,000 feet. Plaintiff therefore knew of the discrepancy between the actual measurement and his estimate. He knew of this discrepancy before the first cargo was loaded. It was his duty to secure a second inspection if he desired to hold the defendants for damages. His estimate was not, and could not be, accurate. While the lumber was in his own control, and it was in his power to have it remeasured, he chose to sell it according to the certificates of inspection. Since he chose to act under the inspection and sell his lumber by it with full knowledge of all the facts, the law will not permit him to recover upon the basis that his estimate was correct and the actual méasurement wrong. Some of these piles contained over 100 courses. The lumber was of various lengths from 12 to 16 feet, according to plaintiff’s testimony, and, according to Little and Parish, from 10 to 18 feet. The estimate was made by taking from 5 to 7 courses, measuring the width of the boards in each course, estimating the average length, and thus determining the amount in these courses. The rest of the pile was estimated by the amount thus reached. It is true that plaintiff was so confident of the correctness of his estimate that he said: “Prom my experience, my estimates and inspection have varied sometimes; but I consider the measurement wrong, not my estimate.” But he also testified that there would be some Wry heavy variations. “Sometimes there would be such a variation between my estimate and the shipment that I would have to stop them.” He was not present at all the estimates, but his employé, Little, made some of them alone. He also said: “I estimated some of the piles, and Little and myself the others. Sometimes I made up my estimate on my judgment, Little on his judgment; and sometimes we then took the combined judgment of both of us. Some [96] times I might measure the boards while he might count the courses.” It is unnecessary to further state the testimony. For the reason above given, the plaintiff was not entitled to recover, and the errors were therefore harmless. Judgment affirmed. The other Justices concurred.