McIntyre v. Rodgers

Cassoday, C. J. By the terms of the contract the plaintiff sold to the defendant 20,106 logs then in the Willow and [10] Tomahawk rivers, scaled by McDonald at 1,812,046 feet, and to be driven by him to the flowage of the Tomahawk dam. One branch of the defense is to the effect that the defendant had been induced to make the contract relying upon the false representations of the plaintiff that there were the number of logs stated and that McDonald had actually scaled • the same at the number of feet mentioned, whereas McDonald had only scaled a part of the logs; that there were 237 logs short; and that the measurement was 277,924 feet less than represented. As indicated in the foregoing statement, the court found against such contention of the defendant, and to the effect that, of the logs so claimed to be short, 208 had sunk and were not raised and delivered to the defendant until after the commencement of this action,— making a difference of only twenty-nine logs; that McDonald was then a competent and reliable scaler; that he honestly and fairly made the scale in the usual and customary manner; and that the plaintiff at no time made to the defendant any false or fraudulent representation concerning the logs, or their number, or the scale thereof. It appears that the logs were taken from the different camps some four or five miles apart, one of which was called the “ McIntyre Camp,” and the logs from that camp were put in the Tomahawk river. The others were banked by Wilson, and by him put into the Willow river. It is, in effect, conceded that McDonald honestly and fairly scaled all the logs at the McIntyre camp, and that there were by such scale 17,003 logs, containing 1,455,001 feet. The balance of the logs were banked and put in by Wilson at the other camp; and according to the statement of the plaintiff to the defendant, and the testimony of McDonald, there were of those logs, by his scale, 3,103 containing 357,045 feet. It appears that McDonald first went to scale the Wilson logs near the mouth of the creek in February, 1892; that he" was alone, and actually measured by the scale all he [11] could get at handily to measure, and marked each log as he numbered it, and then counted the rest of them, and averaged them with those he had actually put the scale stick upon, marking each log at one end or the other, as he counted it; that he went a second time in March, 1892, to scale those logs Wilson, had banked at a different landing, and where he found that most of the logs were numbered and had been scaled by Wilson, who had a card containing an account of each log so scaled and numbered by him; that the logs so numbered were entirely separate from the unnumbered logs; that he scaled the unnumbered logs the same as he had those in February; that, as to the numbered logs, he measured more than half of them, piece by piece, and called out the number of each log to Wilson, who had his scale card with him, and who gave him his scale of the log bearing the number called by him; that in that way he scaled half or more of the numbered logs; that sometimes he found Wilson had given a little more or less than his scale of the logs; that he kept an account of such differences,— of the “ overs ” and “ shorts,”— and thereby found Wilson’s scale to be correct, and adopted it as his own, so far as the numbered logs were concerned; that while so doing he did not give Wilson his measurement until after Wilson had given to him his measurement; that Wilson was not near enough to him to see the log he was scaling; that, from his comparisons with Wilson, he became satisfied as to the scale Wilson had made; that he found there was only a trifling difference between them, and that his own scale was a little larger than Wilson’s; that he counted all the numbered logs, as well as the unnumbered logs; that he actually made a piece scale of more than half of the entire lot of logs put in by Wilson, and that he was sure the result he obtained was correct; that the manner in which he arrived at the scale of those logs was the only way it could be done. The defendant’s son, residing at Tomahawk, and [12] who negotiated the contract and superintended the defendant’s business, examined the logs at the McIntyre camp, and also the logs so banked by Wilson, the last of March, 1892, and after they were all in, and he testified to the effect that there were three or four times as many in the McIntyre camp as of the Wilson logs. This corresponds very nearly with the testimony of McDonald. We must conclude that the trial court was fully justified in holding that McDonald’s scale was fair and honest, and made in the usual and customary manner. The logs were purchased by the McDonald scale, and the only other way that the defendant could relieve himself from paying the full amount of that scale, according to the contract price, was to have a rescale as provided in the contract; and then he could have only a deduction of one half of any shortage found. The court found on that branch of the defense to the effect that the logs were rescaled by Sarohet with the knowledge and without the objection of the plaintiff,, and hence that he was bound by it. The trial judge, in his opinion, states, in effect, that he was in great doubt as to what his holding should be in that regard; but, upon equitable conr siderations, he thought it best to hold that the plaintiff had waived the provision of the contract as to the selection of a person to rescale the logs. The language of the contract is “ that they may be resealed by a competent scaler acceptable to both parties and appointed by the district scaler.” This is not a bill in equity, but is an action at law on contract. The contract did not imperatively require a rescale, but simply provided that one might be made by a competent scaler acceptable to both parties. This implies that the plaintiff should have notice of the proposed rescale, and an opportunity to accept or object to any person who might be suggested for the appointment of such scaler. Sarohet, mentioned in the findings, was employed by the corporation of [13] which the defendant was president to scale the logs coming into its mill, and he scaled the logs in question as they came into the mill. The plaintiff testified to the effect, and it appears to be undisputed, that he was never informed of any desire or intention on the part of the defendant to have a rescale of the logs under the contract; that he was not requested to join in the selection of a scaler, nor consulted in any way in respect to the employment of such scaler; that he had no knowledge that Sarchet or any one was to be or had been appointed such scaler by the district scaler; that he did not'know that a rescale of the logs was being made by Sarchet until about 600,000 feet of these logs had been sawed; that he then saw that Sarchet was scaling all logs that came into the mill — the logs in question and others — in the usual way, but did not then know that the defendant was relying upon or claiming such scale to be a rescale under the contract; that he afterwards sent Easmunson there to see how the logs were running — how many to the thousand,— but he made no report as to how his scale compared with that made by Sarchet. ~We must hold that there was no rescale as prescribed in the contract, and that the plaintiff did not waive the stipulations therein respecting such rescale. The result is that the plaintiff is entitled to recover for the quantity of logs mentioned in the contract, as scaled by McDonald, at the contract price, less the three payments mentioned; that is to say, he is entitled to recover $1,'747.02, with legal interest thereon from September 1, 1892. By the Court.— On the defendant’s appeal, in so far as the judgment is based on findings in favor of the plaintiff, the judgment is affirmed; and on the plaintiff’s appeal the judgment is reversed, and the cause is remanded with directions to enter judgment in favor of the plaintiff and against the defendant in accordance with this opinion..