Horton v. Harbridge , 127 Pa. 11 ( 1889 )

Per Curiam:

The only assignment of error pressed upon the argument at bar, was the third. It alleges that the learned judge below erred in saying to the jury that “ If you come to the conclusion, under the evidence, that there was a clear mistake made in the measurement of the logs, then you determine that from the amount that was sawed upon the mill, both in 1886 and 1887.”

The plaintiff below had contracted with the defendants to cut into saw logs and skid on- skidways, a certain amount of timber; the said logs to be scaled by Scribner’s Rule. After the work was all done and paid for, the plaintiff alleged that a mistake had been made in scaling the logs; that they amounted to much more in quantity than had been returned. This suit was brought to recover the difference, and the point to which the above language of the court referred, was the mode of ascertai.ning the true quantity of logs. A large amount of them had been sawed at the mill, and of course could not be re-scaled. As to such, the only means of ascertaining the quantity was by the saw measure. The court below held, that if the plaintiff was to have the benefit of the saw measure, it was only right that he should be lield to the same measure as to those in the woods which had not been sawed. This clearly appears in that portion of the charge which immediately precedes the language quoted in the assignment of error. The learned judge charged, that “if the jury come to the conclusion that there was a mistake made in the sealement of the logs sawed out upon the mill, we think it nothing more than fair and right that the plaintiff should be hound by the saw bill with reference to those in the wmods measured by Mr. Zimmerman, as well as those sawed on the mill in 1885 [7?], because if he wishes to hind the defendant by the saw bill, saw measurement of the logs in 1886, there is no reason why Mr. Harbridge should not be bound by the same mode in determining the quantity of those logs; for, according to the testimony the saw measurements rarely ever amount to as much as the sealement made in the woods, there is a falling short.” Then follows, as before stated, the few lines of the charge quoted as error. This furnishes an apt illustration of the effect of severing three or four lines of a charge from its connection. The plaintiff was the only person who could with reason complain of this ruling of the court; it could certainly have done the defendants no harm.

Judgment affirmed.