Boudur v. Le Bourne & One Hundred & Forty-nine Cords of Lumber
| Decision Date | 29 January 1887 |
| Citation | 79 Me. 21,7 A. 814 |
| Parties | BOUDUR and others v. LE BOURNE and One Hundred and Forty-nine Cords of Lumber. (STEVENS, Claimant.) |
| Court | Maine Supreme Court |
On exceptions by claimant from supreme judicial court, York county.
Assumpsit for cutting, peeling, and piling 149 3/4 cords of poplar lumber. The defendant was defaulted, and the claimant came in to defend against an alleged lien. The opinion states the facts.
Hamilton & Haley, for plaintiffs.
Rufus P. Tapley, for claimant.
VIRGIN, J. Assumpsit for cutting, peeling, and piling 149 3/4 cords of poplar lumber for pulp. The defendant was defaulted. The claimant came in to defend against an alleged lien. The presiding justice, after the default of the defendant, allowed an amendment by striking out the word "peeling," and the claimant alleged exceptions. We think the ruling was within the discretion of the judge. Hayford v. Everett, 68 Me. 505; Colton v. King, 2 Allen, 317. We are of opinion, also, that his ruling was correct in relation to the lien. Sands v. Sands, 74 Me. 239. To be sure, the contract was specific in terms to prevent any misunderstanding, and included "peeling and piling," as well as "cutting," which term alone is mentioned in Kev. St. c. 91, § 38, as being the foundation of a lien. But it was poplar cut into logs of four feet in length for the particular purpose of being manufactured into pulp. Moreover, the evidence is that it must be "peeled" before it can be thus manufactured, not, as in the case of hemlock, because the bark is of any value, but in order to fit it for manufacture, and which is as essential as cutting, and, as one of the witnesses testifies, "peeling is an incident necessary to it as pulp lumber." Of course it must be "piled" by the chopper who cuts it by the cord, in order that his surveyor might ascertain the quantity, and thereby furnish him the means of knowing how much he was entitled to under the contract, which was to be $1.25 per cord. Exceptions overruled.
1 Reported by Leslie C. Cornish, Esq., of the Augusta bar.
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