Bellew v. Williams

Beed, J., delivered the opinion of the court. Appellant brought suit in chancery to recover from appellee damages alleged to have been sustained by the unlawful measurement of logs hauled by appellant for appellee under a contract. In the bill of complaint it is alleged that the difference between the amount which appellant should have been paid for logs if the measurements had been made as [78] required by law and in tbe amount which, he received through the measurements in accordance with the terms of the contract totaled the sum of seven thousand dollars. He prayed for triple damages— twenty-one thousand dollars. In the logging contract between appellant and appellee it was provided that all logs should be scaled by-Doyle’s rule; and then is set forth certain provisions to be followed in measuring logs of given length. It is claimed that this is in violation of the statute providing a standard of measurement of saw logs and square timber, in that it is different from the standard rule prescribed in the table which the statute requires to be used. The statute referred to is in the chapter on “Weights and Measures,” in the Code of 1906, and is section 5072, reading as follows: “The table known as ‘Scribner’s Lumber and LogBook by Doyle’s Rule’ is the standard rule of measurement by which sawlogs and square timber shall be measured. The use of any other rule of measurement is unlawful; and any person who shall use any other rule which gives a less number of feet in a given log, shall be guilty of a misdemeanor, and punished accordingly, and be liable to any person injured for triple damages.” We note in the same chapter another section, 5066, which reads: “All contracts for work or labor done, or any thing to be sold and delivered, will be construed to have been made according to the standards unless the parties stipulate to the contrary.” A demurrer was filed to the bill of complaint, and was overruled. Appellee thereupon filed an answer. The case was heard by the chancellor on the pleadings and agreed statement of facts. It is admitted that the logs were measured correctly in accordance with the [79] contract, and that appellant had received all owing to him under his logging agreement. The contract has been fully executed. The chancellor, in finally deciding the case, returned to a consideration of the demurrer, and held that he erred in overruling the same, and that it should have been sustained by reason of the third ground thereof, and stated that the same point was raised in the answer. The third ground reads as follows: <£.Tf the contract was in violation of the law of the state of Mississippi, then, the parties being in pari delicto, the complainant cannot recover under the said contract as he is attempting to do.” The chancellor then held that the parties were in pari delicto, and dismissed complainant’s bill. Conceding for this consideration, but not deciding, that the contract made between appellant and appellee was in violation of the statute providing a standard rule of measurement, we then decide that, as both parties participated in the violation of the law, they are in part delicto, and the court will therefore not interfere for the relief of either party, but will leave both in their 'respective conditions. McWilliams v. Phillips, 51 Miss. 196; Lemonius v. Mayer, 71 Miss. 523, 14 So. 33; Woodson v. Hopkins, 85 Miss. 186, 37 So. 1000, 38 So. 298, 70 L. R. A. 645, 107 Am. St. Rep. 275. Affirmed.