Anderson v. Maloy

Berry, J.1 The plaintiffs’ claim for driving the 400,000 feet of' logs was based upon an alleged undertaking on their part to drive them at an alleged special request of the defendants. If such was the undertaking, and plaintiffs performed it, as there was competent evidence tending to show, then, in the absence of an agreed price, plaintiffs were entitled to recover the reasonable value of their services. Whether the undertaking was performed wholly by plaintiffs themselves, or in part by other persons whose services they recognized and paid for, is quite immaterial. It is enough for defendants that it was performed, whether by or on behalf of the plaintiffs. Upon the pleadings, and the whole theory of the case and course of the trial, we think the court was entirely justified in treating the drive testified to as a drive into the St. Croix boom, and in instructing the jury accordingly. And there was competent evidence clearly tending to show that, as respects the 400,000 feet, this drive was accomplished. The plaintiffs’ other claim, viz., that for driving the sixteen or seventeen hundred thousand feet of logs, less the 400,000 feet, is based upon a statute (Gen. St. 1878, c. 32, § 78) authorizing a person who is hindered and obstructed in driving logs by the logs of another, or whose logs are intermixed with those of another, so that they cannot conveniently be separated for the purpose of being driven, to drive-such obstructing or hindering or intermixed logs to some point where they can be conveniently separated from his own, and to recover a. reasonable compensation for so doing from the owner. If the logs-of A are in the way of the logs of B, so that B cannot drive his until A’s are got out of the way, B is hindered or obstructed, within the meaning of the statute. It is not necessary, to constitute such hindrance or obstruction, that the logs of B should have come- in actual contact with those of A. This is all that we deem it necessary to say [78] with regard to the plaintiffs’ claim for driving the logs of defendants other than the 400,000 feet, except to add that in our judgment there is competent evidence tending to show that, under the statute cited, the plaintiffs have entitled themselves to recover of defendants a reasonable compensation for such driving. It follows, from the foregoing, that the defendants’ motion to dismiss, and their motion for a new trial, were both properly denied. The order denying a new trial is accordingly affirmed. Footnotes [1] Dickinson, J., because of illness, took no part in this decision.