Heyser v. . Gunter ( 1896 )

Faircloth, C. J.:

If we are able to understand the record in this case, the following are the facts: The defendant agreed to cht logs from certain lands arid put them into the Tennessee river for the plaintiff, and the latter agreed to pay for the logs so delivered $4.25 per 1,000 feet; that it was agreed that plaintiff might retain one-third of the money for the logs, as they were delivered, until all the timber from certain lands was delivered ; that logs were delivered to the amount of $1,918.46, and paid for, except one-third, $639.46, which was retained, and that plaintiff advanced $200 to defendant to enable him to prosecute his work ; that defendant cut some logs on a 75 or 100 acre tract, but was enjoined from removing them, and that it cost plaintiff $125 more than the contract price to put those logs in the river.

The plaintiff sued in a justice’s court for the $200 advanced, and defendant pleaded payment, and also a counter-claim for $200, waiving and releasing all in excess of $200. The plaintiff’s witness and agent proved that it cost him $125 more than the contract price to put the cut logs in the river, by reason of the remote distance from the river, and that the $639.46 was retained by plaintiff, and defendant, admitted that plaintiff advanced him $200. The court submitted these issues :

“ 1. Is defendant indebted to plaintiff, and if so, in what amount ? Ans., ‘Nothing.’

“ 2. Is plaintiff indebted to defendant, and if so, in what amount ? Ans., ‘ $200.’ ”

His Honor charged the jury that “the measure of damage to the plaintiff would be the $125 that he had to pay in excess of the contract price to put in the timber off this tract, and that, if the jury should find the fact to be in accordance with the evidence of the plaintiff, the defendant would be entitled to a verdict of $200.” Plaintiff excepted.

This was the only exception relied on in this Court. Judgment according to the verdict. We see no error in the instruction, as it seems agreeable to the facts and the evidence. The case may be stated thus :

Amount retained from logs delivered to plaintiff.$639.46

Or. Amt. advanced defendant.$200.00

Cost of putting logs in river. 125.00

Released for jurisdiction. 114.46

Counter-claim. 200.00

$639.46 $639.46

If the conclusion is correct, it is plain lliat the plaintiff has sustained no injury.

Affirmed.