Atwood v. Maine Hub & Manufacturing Co.

- This is an action of special assumpsit based upon a contract by the terms of which the plaintiff agreed to cut and haul certain logs for the defendant at $9.00 per thousand. It was also stipulated that the survey of the logs should be made by a scaler to be agreed upon by the parties. The performance of all the conditions of the contract is admitted. The .correctness of the credits allowed by the plaintiff is not questioned. The plaintiff claims to have cut and hauled for the defendant 13074 sticks. The count is conceded. The only question raised in the case is as to the number of feet of lumber contained in these 13074 logs. In accordance with the terms of the contract, the parties agreed upon C. M. Stuart as scaler. He assumed” the duties of the position and his scale bills show that the plaintiff cut and hauled 728,320 feet of lumber. The plaintiffs suit is to recover for cutting and hauling this quantity of lumber at $9.00 per thousand. The verdict was for the full amount with interest from the date of the writ, less the credits. The case comes to this court on motion and presents pure questions of fact no exceptions having been taken.

*397It is a well settled and familiar rule of law that "when parties have agreed upon a scaler to scale logs, they will in the absence of fraud or mathematical mistake, be bound by his scale.” Nadeau v. Pingree, 92 Maine, 196. Under this rule the only avenue of attack upon the verdict open to the defendant is through fraud, or mathematical mistake, in making the survey. To establish this assault, the burden is upon the defendant. He assumes the burden of proving fraud by introducing evidence that Stuart, the scaler agreed upon, had many times repeated, during the period in which he was scaling that the logs were running from 22 to 23 per thousand, net scale, whereas by the scale bill presented, they avez-aged about 18 per thousand. To corroborate the evidence as to Stuart’s admission upon this point, he put in evidence the testimony of two other men, each of whom scaled a certain portion of the logs in question. Of the 13074 sticks, George P. Longley scaled 1191, less than one in ten. His net scale showed "a little over 22” logs per thousand.

Leon A. Nason scaled a portion of these logs and testified that his net scale showed 28 logs per thousand.

Evidence was presented to the jury upon which, under the rules of law, they would be authorized to find affirmatively, that Nason scaled a lot of logs smaller than the average ; the larger logs having been rolled into the mill to be cut up as they were hauled. He also threw out everything not suitable for hubs. This he was not authorized to do. The logs under the contract were to be mei-chantable, not suitable for hubs. He may therefore have thrown out many logs that should have been scaled, as a log may be merchantable and not fit for a hub.

Stuart denied that he had repeatedly stated to the defendant while he was scaling the logs that they were running from 22 to 23 per thousand. Notwithstanding the evidence of Longley that the net scale of the logs was 22 per thousand and of Nason that it was 28 per thousand, offered by the defendant as tending to show that Stuart’s statement that the logs were running from 22 to 23 per thousand was the fact, and l-aised the probability that he made it, and that he had fraudulently reduced the number from 22 to 23 *398per thousand to 18, was all presented to tbe jury, yet their verdict negatived the allegation of fraud. We hardly see how they could have done otherwise. Stuart made the number of logs per thousand, net, 18 ; Longley 22; Nason 28. It will appear by a comparison of these figures that there is a greater disparity in the number of logs per thousand between Longley and Nason than between Stuart and Longley. Logically, according to the theory of the defense, Longley’s survey in comparison with Nason’s is more amenable to the charge of fraud than Stuart’s in comparison with Longley’s. A boy who can read figures can take the full scale of a log. But scaling in the end, is a matter of judgment, and a comparison of these figures simply shows how these men varied in their judgments as to how much a log should be discounted to make it mei’chantable. We discover no reason for disturbing the verdict upon the charge of a fraudulent scale.

The only evidence of a mathematical mistake is that already presented by the evidence of the three scalers showing the average number of logs, net scale, which they severally found. But which scale shall we take as the mathematically correct one P If Longley was correct, Nason was not; if Nason was correct, Longley was not. As already shown Longley and Nason disagree more than Stuart and Longley disagree. It is evident that neither the scale of Longley nor of Nason can be considered sufficient to show a mathematical mistake in the scale of Stuart. Their figures undoubtedly represent their honest judgment. But inasmuch as Stuart was the scaler agreed upon by the parties, the plaintiff is entitled to his honest judgment. The evidence presented a conflict of judgments. The plaintiff was entitled to the judgment of Stuart, if not fraudulent, and to his scale, if without mathematical mistake. The jury found upon both these propositions in favor of the plaintiff and the verdict should stand.

We think the evidence which breathed into this controversy the breath of life and made it a living soul, may be found in the. testimony of Charles I. Dean, the General Manager of the defendant company, who was called in sur-rebuttal to testify in reference to a conversation which he had with Mr. Atwood with regard to *399Mr. Nason’s scale of the previous year. Being asked if he could recall the substance of that conversation, he said : "I don’t recollect it as they state it here. Mr. Atwood wanted to haul the lumber by stumpage scale. I was not satisfied with the stumpage scale the year previous, and I told Mr. Atwood, as I remember it, that I didn’t intend for him to haul that lumber at the stumpage scale, that I would look after the stumpage scaler and I didn’t intend to have him working on it.

Q. Why did you make that statement to Mr. Atwood?

A. Well, I wanted Mr. Atwood to have, as I stated before, every foot of lumber he hauled — merchantable lumber, and to make a long story short, I intended to have more stumpage scale than I had from Mr. Nason, It was my intention and I got it and I intended to have it. If I hadn’t got it there would have been trouble raised right there. I'was figuring on 22 and 3 logs to the thousand that Mr. Stuart informed me all winter. And from Mr. Nason I was looking for more. I was looking for soke 28 or 30, which proved to be 28.

Q. Stumpage scale?

A. Yes sir.

Q. But you didn’t care to have Mr. Atwood haul at that scale?

A. No. I was satisfied with 22 or 23 logs to the thousand.

Q. Your idea then was for Mr. Atwood to have more than the stumpage scale?

A. It was.

Comment upon this testimony with respect to its bearing upon the animus of this defense is unnecessary. Res ipsa loquitur.

Motion overruled.