Stewart v. Short

Per Curiam:

If the plaintiffs’ account of this transaction was true, and the jury have found that it was, they were entitled to recover for the lumber delivered at defendant’s landing. It is true, the contract was for the entire raft, and that a portion of it was not delivered. The raft contained 283,000 feet of boards, consisting of 14 squares or pieces. Eleven of these pieces were delivered; three of them were not delivered with the others, and defendant subsequently repudiated the contract, and declined to receive them. This clearly excused the plaintiffs from making a further delivery, and entitled them to. recover for the portion which they had delivered. It is at least probable that there would not have been any trouble about this matter but for the fact that the whole of the lumber was swept away by a flood within a day or two after the delivery at defendant’s landing. The case was one for a jury. It was a question of fact, and, while there was a conflict of testimony, it is not our province to say the jury erred. We are satisfied the court did not do so. On the contrary, the case went to the jury under clear and adequate instructions from the learned judge below.

Affirmed.