Gardner S. Melendy v. George A. Ames & Co
| Citation | 20 A. 161,62 Vt. 14 |
| Parties | GARDNER S. MELENDY v. GEORGE A. AMES & CO |
| Decision Date | 01 October 1889 |
| Court | United States State Supreme Court of Vermont |
GENERAL TERM, OCTOBER, 1889.
Judgment reversed and cause remanded.
D C. Hyde and S. C. Shurtleff, for the defendants.
This was an action on the case brought to recover the value of certain logs that the declaration alleges were lost in consequence of the negligence and carelessness of the defendants in not stopping and retaining them by their boom which was strung across Connecticut river. The defendants requested the court to charge that the burden of proof was upon the plaintiff. The court charged that the burden of proof was upon defendants to show that the logs were lost without their fault.
The defendants were entitled to the charge requested and it was error not to comply with the request.
To entitle the plaintiff to recover it was incumbent upon him to show that the logs were lost in consequence of the negligence and carelessness of the defendants as alleged in his declaration, and the burden of proof was upon him to show the fact. The error was not cured by what the court said upon the matter of the burden of proof, if the jury should find a certain state of facts. The first contract seems to have been that the plaintiff was to put his logs into the river and run them down to the defendants' mill, to be sawed into lumber by them at a certain price per thousand.
The plaintiff for reasons disclosed in the evidence was unable to run the logs, and applied to the defendants to run them from Thetford to their boom, which they had strung across the river to stop and retain them. And his evidence tended to show that the defendants received the logs at Thetford, a point some distance above their boom, the same as if they had been delivered in their boom. The defendants' evidence tended to show that they did not agree to accept the logs at Thetford, and that in what they did in running the logs from Thetford to their boom they acted as the agents of the plaintiff. The boom gave way, and the plaintiff's logs as well as those of the defendants, went down the river. An arrangement was made by the parties that the defendants were to run the logs down the river to some point where they could be secured and sold. The defendants succeeded in having a part of the logs stopped at Turners Falls and the rest went down the river and were lost. Those stopped at Turners Falls were sold...
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