Jones Lumber Co. v. Howard , 142 Ky. 346 ( 1911 )

Opinion of the Court by

Judge 0 ’Rear

Affirming.

Appellee sold appellant a lot of saw logs in Pucketts Creek, a tributary of Cumberland River. The Jogs were accepted and paid for. After they were sold, appellee was hired by appellant to run all its logs out of Pucketts Creek into the liver. Appellant had quite a quantity of other logs in Pucketts. Appellant was to pay appellee $1.00 a thousand feet for all logs so run out during the existence of his contract. 419,000 feet of logs were run out of the creek in that time. Appellant refused to pay for the logs run that it had purchased from appellee, on the ground that it had construed the contract to be that he was to deliver his logs into the river. The question whether such was the contract was appropriately submitted to the jury, who found that it was not. We agree with the jury upon the evidence. Appellant’s manager, G-olden, offered to testify what he understood the contract to be. The testimony was rejected. Appellant complains on that score. What Golden understood was not'relevant as evidence. He did not make the contract with appellee. Another agent represented appellant in that transaction. The contract v/as not in writing. What was said between the parties then was relevant, bnt what either may have understood was not relevant evidence under the issues of this ease.

The contract to run out the logs was for a year, it seems. All the logs were not run out in that time. Appellant’s agent in charge and appellee discussed at the end of the year whether another would take the job hut they finally agreed that appellee would go ahead and finish it. Notwithstanding it seems appellant did have others to work on the job. Now it is said that for logs run out whilst the latter persons were working at them there should have been deducted the sum represented by their measurement. Appellee’s contract was not to he paid for such logs as he should run out of ihe creek. His pay depended not on what he actually put nut, but on the quantity that came out while he was working at them. Many floated out without his doing anything toward getting them out. Nevertheless, he was required by his contract to be on hand with workmen whenever there came a tide in the creek to see that appellant’s logs did not stand on the shores and riffles. Appellant could not disappoint him of his contract by voluntarily putting other men on the job to help get out the logs. Appellee seems to have performed his part of the contract, and was entitled to receive the pay for it.

The facts were found by the verdict. The evidence warranted their finding. The facts so found in the light of the evidence must be accepted by this court as the facts of the case.

Judgment affirmed.