Gardner v. Wilber

LyoN, J. No greater effect can be given to the lumber inspector’s scale-bill and certificate, as evidence, than is prescribed in the statute on that subject (K. S. sec. 1735), which makes the same presumptive evidence of the facts [604] therein contained and of the correctness of such statement or measurement. Being only presumptive evidence of those facts and statements, such scale-bill and certificate may be impeached for mistake or fraud on the part of the inspector in making the same. The jury, under proper instructions, found that the inspector committed gross error or fraud in scaling the logs. If the finding that the logs contained 986,304 feet, board measure, of merchantable lumber, is upheld, it necessarily follows that there must have been gross error or fraud in a scale which fixed the quantity at 196,650 feet, béing only one fifth the quantity found by the jury.' Hence the vital question in the case is, Does the testimony support the finding of the jury as to the quantity of merchantable lumber-contained in the logs? We think this question must be answered in the affirmative. In the first place, the parties in their contract estimated that the logs contained about 1,000,000 feet of lumber, board measure. The language is, “ said logs being one million feet, more or less.” The agent of the plaintiffs who made the purchase exámined the logs. , They were on roll-ways and accessible. They were not covered with snow, and he had ample opportunity to examine them fully. Presumably he did so. He was a lumber expert, and doubtless well qualified to make an approximately accurate estimate of the quantity of lumber which could be cut from the logs. True, they were old logs, and were sap-rotted and worm-eaten, as old logs always or usually are. But the agent knew these facts and, it is reasonable to believe, made his estimate with reference thereto. He knew also that they would produce an inferior quality of lumber, and it is quite apparent that the price was fixed accordingly. Again, the mill scale showed about 1,000,000 feet of lumber cut from the logs, excluding mill culls. The original figures made by the scaler were not produced, but such scale was entered daily, just as the scaler made it, by Mr. [605] Sutherland in his mill book. ' Such entries were received as evidence tending to show the quantity of lumber cut from the logs. It is claimed they were incompetent. The amount of sawing done for the plaintiffs by Mr. Sutherland was ascertained from the figures contained in these entries, and the plaintiffs indorsed their accuracy by paying for sawing the amount of lumber which they indicated. There was also considerable other proof of their accuracy. Under these circumstances, we think such entries were-competent testimony. Several lumber experts testified to estimates of these logs, all putting the quantity of lumber they contained at about 1,000,000 feet. It may be that such testimony is incompetent. But inasmuch as the plaintiffs themselves, through their agent, made the same estimate, it is not perceived how they could have been prejudiced by such testimony. The logs were small, old, sap-rotted, and worm-eaten, and necessarily the lumber cut from them was of inferior quality. We think, however, that the testimony supports the finding that the quantity specified therein was merchantable lumber,— that is to say, merchantable in the grade to which it belonged,— and this is the meaning of the verdict. Error is assigned upon one or two passages in the charge to the jury. The verdict being special, any general discussion of the case in the charge is of little importance. We think, however, that it contains an accurate statement of the law of the case, and that there is nothing in it of which the plaintiffs can justly complain. By the Gourt.— The judgment of the circuit court is affirmed.