*358Davis Wood Lumber Co. vs Jos Schillkoffskey,Appellant.

No.8926

This is a suit to recover the value of services rendered.

The plaintiff avwrred that the defendant owned a piece of land near Kanderville and employed the plaintiff to out,haul^ saw,and dress the lumber fwwm the standing pine trees on said land;that defendant agreed to pay plaintiff $22 per 1000 feet for rough lumber,and $27 per 1000 feet, for dressed lumber; that on January 21st 1920 plaintiff sHipped to defendant a oar containing 19,575 feet of rough lumber making $43#.66^and 2422-feet of dressed lumber making $05.59,or a total of $496;04 ; that on July 28th 1920 defendant paid $200 on account,leaving a balance due of $296.04 for which plaintiff claims - judgment.

Defendant admitted that he had employed the -plaintiff as alleged except for the outting;he admitted the shipment of lumber as alleged;he admitted the payment of $200,but -denied indebtednesses denied that the price agreed upon for dressed lumber was $27 but alleged that it was $25; further answering defendant alleged that after the lumber mentioned by plaintiff had been out and delivered to defendant there still remained 60 logs from defendant's lands in"the possession of -plaintiff, the lumber of which should have been out and delivered to defendant;that the value of said lumber contained ia.Baid logs is $420.00,which the defendant is entitled to offset against the (291.83) balanoe he owes the plaintiff $2#1.83,leaving a balance due to him by plaintiff of $128.17 .

There was judgment in favor or plaintiff for $283.93 , dismissing the reoonvent-ional demand, as in case of non. suit,

The defendant alone had appealed.

The price of'$22 a 1000 feet for rough lumber was proven by the testimony of- plaintiff; the defendant admitted that'.It was *359the price made to him,and that he had paid it on former shipments under the same contract.

The price of 827 a' 1000 for dressed lumber seems to have been correctly reduced to $26 by the judgment of the City Court.

There is no testimony to establish defendants reoonven-tional demand,he is the only witness in support of it .His test-i*-mony is vague and Indefinite.He says that on a trip to Handerville, when the train pulled out ^he noticed a big pile of logs and he recognized his logs;especially one log which had formed the comer of his fence and upon which there was still a piece of his fence six inches lorig;he counted between 56 and 60 logs of different sizes from 10 inches in' diameter up/some logs would bring 100 feet otherJWcuj-d 1500 feet;he understood those logs were out up for fire wood in Handerville.

He is contradicted by Jessie Smith,wood foreman for the plaintiff-This witness says that before starting to haul,for the defendant they had been hauling for Mr Davis ;they had about 36 logs left at the Railroad depot for Mr Davis ; but as that did not maSe a' car load,they left them there,and began hauling for the defendant;they hauled all of the defendant's logs out of the woods,and " in the winding up of hauling " there were left 5 logs for the defendant at the railroad depot for lack of room, on the freight oar;the logs were sep^ated;those belonging tó Davis were marked,those, of defendant were not marked;he.wae there when- the logs were put there,and there when they were taken awayi Lt was his duty to see to that;the defendant's logs were very common loblolly timber about 100 feet to the log.

Mr W.H.Davis corroborates this testimony.

The judgment' is therefore affirmed.

Judgment affirmed.

March 6th 1923