Dwinel v. Barnard , 32 Me. 116 ( 1850 )

Howard, J.

This case has been presented to us before, on a report of the evidence, Dwinel v. Barnard & al. 28 Maine, 554. It was then held, that the plaintiff was entitled to recover upon the contract; and the amount of damages, which were then unsettled, have since been determined by-verdict. The cause is now presented on exceptions to the instructions given to,the jury at the trial.

By the written contract, the defendants were to pay, in addition to two shillings for every thousand feet of their timber “ run through the plaintiff’s cut,” “ one half of all expenses incurred by said Dwinel in bringing up to said cut, from Bangor, about fifty men to protect and guard said cut, and all expenses in connection therewith.” The controversy is now, principally, respecting the construction of that portion of the contract last above quoted.

What were the expenses incurred by the plaintiff, and whether they were within the meaning of the contract, as interpreted by the court, were questions which the presiding Judge properly submitted to the jury. Whether the plaintiff has paid, or is liable, only, to pay those expenses, cannot operate on his right to recover of the defendants. They are not affected by his independent contract with others, either in the breach or observance, but their liability arises from their own contract, and is to be measured in this particular by the expenses incurred. The instructions in this respect were correct.

The defendants contended, that the plaintiff, under the contract with them, had no right to charge and recover for the time and expenses of the return of the men employed. But the instructions to the jury were, that the plaintiff could not recover for the wages of these men, for guarding the cut after the defendants’ logs had passed through it, and, that he might recover for the expenses and wages, while returning, of those men who returned immediately after these logs had passed the cut, and for such expenses and wages, thus incurred, as the plaintiff was bound to pay, either by an express or implied contract; but that for the expenses and wages of such as he had a right to discharge at the cut, and such as remained there, and went into other business, he could' not recover.

Whatever expenses the plaintiff was bound to pay, under his engagement with the men employed for the purposes mentioned, would seem to be incurred in “ connection therewith,” and were within the terms and meaning of the contract with the defendants. The expenses claimed are such as might ordinarily result from the nature of the employment in a distant, and comparatively uninhabited territory, and such as the defendants would be likely to understand were embraced in the provisions of their contract. That contract does not limit the expenses, to be paid by the defendants, to the mere expenses of “ bringing up” the men, but includes the expenses incurred by the plaintiff, in “ bringing up” the men, for the purposes specified, and such other expenses as he might incur in connection therewith.

What expenses the plaintiff did thus in fact incur, was a question for the jury ; and, in our opinion, that question was forcibly presented by the instructions.

Exceptions overruled. Judgment on the verdict.