Hutchins v. Merrill

• Decision Date: 18 September 1912
• Citation: 109 Me. 313,84 A. 412
• Parties: HUTCHINS et al. v. MERRILL.
• Court: Maine Supreme Court

84 A. 412

109 Me. 313

HUTCHINS et al.

v. MERRILL.

Supreme Judicial Court of Maine.

Sept. 18, 1912.

Exceptions from Supreme Judicial Court, Kennebec County.

Action by W. D. Hutchins and others against Charles D. Merrill. From a judgment for plaintiffs, defendant brings exceptions. Sustained.

Argued before WHITEHOUSE, C. J., and SPEAR, CORNISH, BIRD, HALEY, and HANSON, JJ.

Williamson, Burleigh & McLean, for plaintiffs.

C. W. Hayes, for defendant.

WHITEHOUSE, C. J. This is an action to recover damages alleged to have resulted from the negligence of the defendant in sealing certain logs. The plaintiffs made a written contract with one Robert W. Foster to cut and haul the merchantable logs on the timber lands owned by them in the town of Guilford, and therein stipulated that the timber and wood should "be scaled by a disinterested sworn surveyor," to be paid by the plaintiffs. Foster was to receive $4.50 per thousand feet for cutting, yarding, and hauling the logs; and the evidence tended to show that the fact that the plaintiffs were to pay the scaler was taken into consideration in fixing the price of cutting and hauling. It was not in controversy that the defendant was selected by the parties to that contract to survey the logs cut thereunder, and that it was mutually agreed that his scale should be final and binding between those parties as the basis of payment under that contract.

It was not in controversy that the scale made by the defendant in the woods made 1,891 pieces and 106,500 feet of lumber, while another scaler at the mill in Foxcroft found but 1,746 pieces and only 57,000 feet, showing a discrepancy of 49,326 feet. There was evidence, however, tending to show that after the logs were landed, and before the booms were hung at the mill in Foxcroft, some of the logs were carried away by high water. But upon this point the testimony was conflicting, and the plaintiffs claimed to recover as damages the sum of $221.97, being the contract price of $4.50 per thousand on 49,328. The jury rendered a verdict for the plaintiffs of $82.98, showing that the discrepancy found by them was only 18,840 feet.

It was expressly admitted by the plaintiffs that the defendant was an experienced and competent scaler, and there was no allegation or evidence of fraud or collusion on his part in making his scale. It is admitted that there was no fraud or mathematical mistake which would release the plaintiffs from paying Foster for cutting and hauling according to the defendant's scale. But it was contended that he negligently omitted either to count the logs so that he knew the number of them, or to scale a sufficient number to estimate the average contents, but carelessly accepted the count made by the teamsters and averaged the number of feet per logs from pencil marks found by him upon the logs.

The defendant admitted that, by reason of the difficulty in counting the logs as they were piled in the yards, he did not actually count all of them, but contended that he counted a sufficient number of them to satisfy his judgment, and that the tally kept by the teamsters of the number of pieces hauled by them was correct. He also earnestly contended that he scaled enough of the logs of the various sizes to satisfy his judgment that he had scaled a sufficient number to obtain a fair average of all the logs, and introduced evidence to support both of these contentions.

In view of the fact that the proper discharge of the duties of the scaler involves the exercise of skill and judgment, as well as absolute impartiality on his part, and of the mutual agreement of the parties that the defendant should scale the logs and that his scale should be final and conclusive, the defendant contended that he must be deemed to have acted in the capacity of an arbitrator, or quasi arbitrator, between the parties to the contract, and accordingly requested the presiding judge to instruct the jury "that if the defendant was appointed by plaintiff and Robert Foster to scale lumber cut by Foster, under contract with plaintiff, and in the contract it was then and there agreed that the scale so made by this defendant should be final and binding between the parties, then the defendant acted in the capacity of an arbitrator between the parties, or at least as a quasi arbitrator, and, if the performance of his said duty requires the exercise of skill and judgment, then the defendant is not liable in this action; there being no proof or allegation of fraud."

The presiding judge declined to give this instruction, but upon this branch of the case instructed the jury as follows:

"I say, too, that if upon all the testimony in this case, upon one side and the other, weighing it as I have suggested, you should find from a fair preponderance of the evidence that you are convinced thereby that the defendant in this case was negligent or careless in the scaling of these logs, and that through his negligence and carelessness a misscale was made or a misstatement was made of the amount of the scale, and that thereby the plaintiffs paid any amount of money, under the original contract, then this defendant is liable. When you go out to your rooms, you go out those three different times onto the bank of that river, with the defendant in this case, and ascertain from the testimony in this case what Mr. Merrill did there; determine if what he did there was done carelessly or negligently or not. That is the question for you to determine. If you conclude that it was done properly, that is the end of the case, and your verdict should be for the defendant. On the other hand, if you are satisfied that it was done carelessly or negligently, then you are to determine what was the amount of the lumber under a fair and perfected scale that was cut and hauled and yarded in this operation."

The question thus presented is in some respects one of novel impression in this state and in all respects one of more than ordinary importance in determining the duties and responsibilities of quasi arbitrators and those agreed upon to perform judicial functions, as well as the rights of those affected by their acts.

It is a familiar rule of law in this state, established by a uniform line of decisions, that, when parties have mutually agreed upon a surveyor to scale logs, his scale will be binding and conclusive upon them, in the absence of fraud or mathematical mistake. In Bailey v. Blanchard, 62 Me. 168, it is said in the opinion that "neither party is at liberty to set aside or impeach the scale except on such evidence as would avoid the award of an arbitrator mutually chosen." In Bangor Savings Bank v. Insurance Company, 85 Me. 68, 26 Atl. 991, 20 L. R. A. 650, 35 Am. St. Rep. 341, it was held that an appraiser to determine the amount of the damage or loss under an insurance policy may call in the aid of a third person skilled in a special branch of the appraisal, and may give to the estimate of such third person such weight and credence as he sees fit, even to the point of founding his judgment upon that estimate, provided he adopts that as his real judgment. In the opinion the court say:

"It is not necessary to follow the different courts in their ingenious efforts to trace, for all cases, a line of distinction between a mere appraisement and an ordinary submission to arbitration. The result may be that such appraisers are properly considered arbitrators for some purposes, but not in all respects. All are invested with quasi judicial functions, which must be discharged with absolute impartiality, without the improper interference of either party, or undue influence from any source. But appraisers may be said to act in the twofold capacity of arbitrators and experts. In their character of experts they not only give effect to opinions based directly on their personal experience and knowledge, but also opinions founded in some measure upon information which may not be so direct...