Pallman v. Smith

Supreme Court of Pennsylvania May 19, 1890

Pallman v. Smith, 135 Pa. 188 (Pa. 1890)

19 A. 891; 1890 Pa. LEXIS 1169

Clark, Collum, Green, Paxson, Pee, Williams

Opinion of the Court

Pee Curiam:

Our examination of this record satisfies us that the judgment should be affirmed. The question of plaintiff’s compliance with his contract was submitted to the jury under proper instructions. They were distinctly told that unless there was a substantial compliance he could not recover. The amount of logs delivered and the balance due plaintiff under the contract were questions for the jury.

No error is perceived in the admission of the testimony of the plaintiff in regard to the measure of the logs kept on the boards. The contract between the parties does not specify who shall keep the measure; it only provides that they shall be scaled “ per Dusenbury rule.”

*194Nor was there error in rejecting the evidence referred to in the second and third assignments. It would not have thrown any light upon the investigation to have proved the amount of unpeeled logs cut upon the place, or the amount of. bark that was peeled from the timber cut. On the contrary, the probability is that such testimony would have confused the jury, if it did not mislead them.

The remainder of the assignments refer to the instructions of the court, which are free from error.

Judgment affirmed.

Reference

Full Case Name: FRANK PALLMAN v. M. J. SMITH
Cited By: 11 cases
Status: Published
Syllabus: 1. In an action to recover upon a contract to cut and deliver all the logs upon a tract of land, the seller cannot recover unless it is found from the evidence that he has substantially complied with his contract, by cutting and delivering all the logs upon the tract of the kind specified. 2. But the leaving back of a few of the logs, which were so covered with brush and snow that they could not be found and got out by reasonable care and diligence, would not be such a failure of substantial performance as would defeat the plaintiff’s right to recover for the timber delivered. 3. In ascertaining the quantity of timber cut and delivered, it was not error to admit in. evidence an account of the measurements entered by the plaintiff at the time they were made on boards prepared for the purpose, iu connection with the plaintiff’s testimony showing how the measures were taken and how they were so entered. 4. Nor was il error to refuse offers by the defendant to prove the amount of bark that was peeled from the timber cut and sold, or the amount oí unpeeled logs on the tract, as evidencie tending to show the amount oí the timber cut and delivered to the defendant under the contract.