Haynes v. Hayward , 40 Me. 145 ( 1855 )

Appleton, J.

On March 25, 1853, the plaintiff contracted with the firm of Hayward & Co., of which the defendant is a member and whose rights he represents, to sell them “all the logs cut and hauled into the Joe Merry waters the present lumbering season, by J. & F. H. Oowan, and marked NHX.” The contract, after specifying the prices, proceeds as follows, “ the foregoing sale and prices are based upon the wood scale of John K. Gilmore, whose certificate of quantity shall be conclusive between the parties.” In the close of the contract there is a further stipulation, that if the scale of Gilmore should not be satisfactory to either party, it may be rescaled and the certificate of the person by whom the logs may be scaled, shall be conclusive as to quantity between the parties.

The scale bill of Gilmore, to which reference is made and which is admissible in evidence between these parties, purports to be of logs sealed and counted, from Jan. 1, 1853, to April 9, 1853, and besides the logs, contains the admeasurement of one mast.

On April 9, 1853, it was agreed by the parties to the contract of sale, “to discount, from the prices before named, twelve and one half cents per thousand, and the scale of Mr. Gilmore is to be taken on settlement.” This agreement is indorsed upon, and made part of, the contract of March 25, 1853, under which the defendant derives his title to the logs then contracted to be sold.

The question in controversy is, to whom the mast, the quantity of which appears in the scale bill of Gilmore, belongs.

The statutes of this State recognize different kinds of lumber, designated by different names and appropriated to different uses. There are logs, masts, spars and other lumber. It is insisted that in the contract, under which the defendant claims, the word “ logs” includes within its meaning f‘ masts.” Being a word of enlarged signification, it mighty under some circumstances, receive such a construction. So-it might, in some supposeable use of the term, be held to embrace “ spars.” But, in this case, nothing indicates that it is to receive an enlarged meaning. The quantity, by the terms of the contract, is to be ascertained from the scale bill'of Gilmore, and that is to- “be taken in the settlement.” The scale bill is therefore in terms incorporated in the contract. Being incorporated in the oontract, the sale is of a. certain specific amount of logs, scaled by Gilmore, and of nothing else. There may have been masts and spars, which are a distinct species of lumber, in Gilmore’s- bill, but they are not included in the contract. That prevides that the scale bill of Gilmore, or, if any dissatisfaction should arise as to his scale, of some one to be agreed upon, shall be final and conclusive. The contract is finally closed, by mutual consent, upon the basis of his scale of the logs. In that scale, the mast was not included. The distinction between masts and logs is to be found in the statute and in the scale bill of Gilmore, and by the adoption of that bill, it must be deemed as part of the contract, by the mutual assent of all parties.

The mast cannot therefore be regarded as having been included in the logs sold. The plaintiff is entitled to recover.

Defendant defaulted.