Pevey v. Schulenburg & Boeckeler Lumber Co.

• Decision Date: 22 December 1884
• Citation: 33 Minn. 45
• Parties: HENRY L. PEVEY <I>vs.</I> SCHULENBURG & BOECKELER LUMBER COMPANY.
• Court: Minnesota Supreme Court

Page 45

33 Minn. 45

HENRY L. PEVEYvs.

SCHULENBURG & BOECKELER LUMBER COMPANY.

Supreme Court of Minnesota.

December 22, 1884.

Plaintiff brought this action in the district court for Washington county, alleging a contract between himself and defendant by which he was to do certain towing, and seeking to recover (1) the value of his services lost through defendant's negligence and delay, (2) the cost of refitting rafts, (3) the amount unpaid for the towage of the 5,080,110 feet of logs mentioned in the opinion, (4) damages for defendant's preventing him from towing under the contract certain rafts of defendant, and (5) for extra services in stopping and securing certain rafts.

The action was tried before McCluer, J., and a jury, and plaintiff had a verdict. Defendant appeals from an order refusing a new trial.

Clapp & Macartney, for appellant.

J. N. Searles, for respondent.

DICKINSON, J.

The plaintiff, who was the owner and master of a steam-boat, made a verbal contract with the defendant in June, 1883, at Stillwater, for the towage of logs in rafts by him, for the defendant, from Beef slough, at the mouth of the Chippewa river, to a point below on the Mississippi river, called New Boston bay, for the agreed price of $1.50 per thousand feet. The questions first to be considered relate to a controversy as to the amount of logs towed, and as to the manner of scaling the logs for the purpose of computing that amount. Both parties are to be regarded as conceding that the term "a thousand feet," in the contract, was intended to exclude hollow, rotten, and crooked logs, and that it was understood that estimate or computation of the amount of logs in the rafts would be made only of sound, straight, merchantable logs. This is in accordance with our statutory rule for scaling logs. Gen. St. 1878, c. 32, § 12.

The defendant asserts the applicability to the case, as affecting the contract, and as determining the mode of estimating the quantity of logs, of an alleged custom at Beef slough, where the rafts were made up, to scale all logs "full," (that is, taking the full measure of all logs, without regard to defects,) and then to deduct from the full amount so scaled 15 per cent., as the allowance for defective, unmerchantable logs. The logs towed to New Boston bay were scaled "full" in this manner by the boom company, whose duty it was to assort, scale, and deliver the logs, and from which the rafts were received for towing. No estimate was made as to the defects in individual logs scaled. The amount of logs towed by the plaintiff to New Boston bay, as measured by the "full" scale, and without deduction or allowance for defective logs, was 5,080,110 feet. The defendant has paid for towing that amount, less 15 per cent., which it claims to have been both a proper and reasonable deduction or allowance for defective logs, and in accordance with the alleged custom. The plaintiff seeks to recover for the remaining 15 per cent.

The court instructed the jury that the alleged custom was not established, which instruction the defendant contends was erroneous. The defendant sought to prove the alleged custom by evidence that an association or "pool," consisting of the owners of two-thirds of the logs brought into Beef slough, and of which this defendant was a member, in 1882 and 1883 had their logs scaled "full," the amount of merchantable logs being computed by deducting 15 per cent. from the "full" scale in 1883, (12½ per cent. being deducted in 1882;) that this mode of scaling the logs of this association was adopted and applied in computing the amounts of logs; in measuring compensation to the boom company for its services in respect to the logs; in distributing logs among the members of the association; in sales made; and in fixing compensation for towing. This usage existed only with respect to the logs of this "pool," other logs at Beef slough being scaled in the...