ON
EXCEPTIONS AND MOTION to set aside the verdict.
An
action on the case to recover damages of the defendant
corporation for carelessly and negligently preventing the
plaintiffs from seasonably delivering 751,290 feet of spruce
logs, and 48,780 feet of pine logs, cut and hauled by them in
the winter of 1872-3, on landings on the steam between
Caribou lake and Chesuncook lake, at the outlet of Chesuncook
lake, in consequence of which 600,000 feet of the
plaintiff's logs were not driven to market in the year
1873, but were left behind in an exposed position, where many
were lost, and there was a great shrinkage in quantity and
quality.
The
writ is dated December 8, 1877.
Plea
general issue.
The
verdict was for plaintiff for $1496.51, and the defendants
move to set the same aside as against law, and against
evidence and the weight of evidence. The defendants also
allege
exceptions to refusals of the presiding judge to give certain
requested instructions.
The
following are the provisions of the charter of the defendant
corporation referred to in the argument of counsel and
opinion of the court.
"
An act to incorporate the Penobscot Log Driving Company
Section 1. That Ira Wadleigh, Samuel P. Strickland, Hastings
Strickland, Isaac Farrar, William Emerson, Amos M. Roberts
Leonard Jones, Franklin Adams, James Jenkins, Aaron Babb and
Cyrus S. Clark, their associates and successors, be, and they
are hereby made and constituted a body politic and corporate
by the name and style of the Penobscot Log Driving Company,
and by that name may sue and be sued, prosecute and defend,
to final judgment and execution, both in law and in equity;
and may make and adopt all necessary regulations and by-laws
not repugnant to the constitution and laws of this State and
may adopt a common seal, and the same may alter, break and
renew at pleasure; and may hold real and personal estate not
exceeding the sum of fifty thousand dollars at any one time
and may grant and vote money; and said company may drive all
logs and other timber that may be in the west branch of
Penobscot river between the Chesuncook dam and the east
branch to any place at or above the Penobscot boom, where
logs are usually rafted, at as early a period as practicable.
And said company may for the purpose aforesaid clear out and
improve the navigation of the river between the points
aforesaid, remove obstructions, break jams and erect booms
where the same may be lawfully done, and shall have all the
powers and privileges and be subject to all the liabilities
incident to corporations of a similar nature."
"
Section 3. Every owner of logs or other timber which may be
in said west branch between said Chesuncook dam and said east
branch or which may come therein during the season of driving
and intended to be driven down said west branch, shall on or
before the fifteenth day of May in that year, file with the
clerk a statement in writing, signed by such owner or owners,
his or their authorized agent, of all such logs or timber,
the number of feet, board measure, of all such logs or
timber, and the marks thereon, and the directors or one of
them shall require such owner or owners or agents presenting
such statement to
make oath that the same is, in his or their judgment and
belief, true, which oath the directors or either of them are
hereby empowered to administer. And if any owner shall
neglect or refuse to file a statement in the manner herein
prescribed, the directors may assess such delinquent or
delinquents for his or their proportion of such expenses,
such sum or sums, as may be by the directors considered just
and equitable. And the directors shall give public notice of
the time and place of making such assessments by publishing
the same in some newspaper printed in Bangor, two weeks in
succession, the last publication to be before making such
assessments. And any assessment or assessments when the owner
or owners of any mark of logs or other timber is unknown to
the directors, may be set to the mark upon such logs or other
timber. And the clerk shall keep a record of all assessments
and of all expenses upon which such assessments are based,
which shall at all times be open to all persons
interested."
"
Section 4. Said directors are hereby authorized to make the
assessment contemplated in the last preceding section, in
anticipation of the actual cost and expenses of driving, and
in any sum not exceeding for each thousand feet, board
measure, the sum of sixty-two and one half cents, and so in
proportion to the distance which any logs or other timber is
to be or may be driven between said Chesuncook dam and the
places of destination, to be determined by said directors.
And if after said logs or other timber shall have been driven
as aforesaid and all expenses actually ascertained, it shall
be found that said assessment shall be more than sufficient
to pay said expenses, then the balance so remaining shall be
refunded to the said owner or owners in proportion to the
said sum to them respectively assessed." Approved August
10, 1846.
An act
additional, approved July 31, 1849: " Section 1. The
Penobscot Log Driving Company may drive all logs and lumber
between the head of Chesuncook lake and the east branch,
instead of between the Chesuncook dam and the east branch,
and with all the powers, rights and privileges, and under the
same conditions, limitations and restrictions, as is provided
in the act to which this is additional; and may assess
according to the provisions of said act, a sum not exceeding
twenty-five
cents for each thousand feet, board measure, in addition to
the sum of sixty-two and one half cents, as provided for in
the fourth section of said act, for the purpose of paying the
expenses of driving said logs and lumber across said
lake."
An act
to amend, approved April 20, 1854: " Section 1. The
Penobscot Log Driving Company, are hereby authorized to make
an assessment for the purposes required in said charter of
the sum of eighty cents for every thousand feet of lumber
driven by said company, instead of sixty-two and a half cents
as is provided in said charter."
An act
additional, approved April 9, 1856: " Section 1. The
powers granted to the said company are hereby enlarged and
extended so as to include within the chartered limits thereof
the boom and piers, now in process of being erected at the
head of Chesuncook lake, which are to become the property of
said company, and all the expenses of erecting and completing
the same, are to be assumed and borne by said company."
"
Section 2. The company may assess a toll pursuant to the
provisions of their charter, not exceeding one dollar for
every thousand feet, board measure, of logs driven under the
provisions of said act; and all acts and parts of acts
providing for any different rate of toll are hereby repealed,
except that they shall remain in force as to all tolls
heretofore assessed and remaining uncollected."
"
Section 3. The directors may authorize the treasurer to give
the company notes for the amount necessary to be raised to
pay the expenses of erecting said boom and piers for such
sums and payable at such times as they direct. Provided, this
act shall be accepted by the said company at a meeting called
for that purpose."
An act
additional, approved March 21, 1864: " Section 2. Said
company shall be under no obligation to drive any logs coming
into the Chesuncook lake at any other point than from the
main west branch unless seasonably delivered to them at the
head or outlet of said lake."
An act
additional, approved February 24, 1865: " Section 1. The
Penobscot Log Driving Company may assess a toll not exceeding
two dollars per thousand feet, board measure, on all logs and
lumber of the respective owners, which may be driven
by them, sufficient to cover all expenses, and such other
sums as may be necessary for the purposes of the company, and
all acts and parts of acts inconsistent with this act are
hereby repealed."
A copy
of votes passed at the annual meeting of the Penobscot Log
Driving Company, held February 11, 1873:
" Voted. That the directors be authorized and directed
to employ a suitable person for agent on the drive."
" Voted. That it shall be the duty of the person
employed as agent on the drive, to determine when and where
logs may be left on said drive; and whoever drives the logs
in said drive the ensuing season shall be under the direction
of said agent; and for all logs left without the consent of
said agent, a reasonable damage therefor the directors shall
collect of the party making said drive, said agent to keep an
account of all logs left."
Contract
of Henry Davis to drive the West Branch in 1873:
" Bangor, February 18th, 1873.
Memorandum
of agreement between the Penobscot Log Driving Company, of
the one part, and Henry Davis, as principal, and George W.
Pickering and George C. Pickering, as sureties, on the
other."
"
Said Weed, [A. B. Weed] or other person satisfactory to
Davis, to be selected by the directors, is to accompany the
drive and may act as clerk of the drive; he shall decide when
the drive shall leave Chesuncook dam, and he is to follow the
drive and see that it is faithfully performed. He shall also
decide what logs may be left in the drive, and his decision
shall be binding, he to keep account thereof, and all others
shall be driven. His wages to be paid one-half by each party,
but to be boarded by Davis."
That
contract was on the day of its date transferred by Henry
Davis to John Ross.
There
was evidence tending to show that A. B. Weed was the person
agreed upon as agent and clerk as provided by the vote and...
