Hale v. Handy, 26 N.H. 206

Gilchrist, C. J. It is contended by the defendant that the judgment should be arrested, because the whole of the consideration for his promise is not Stated in the declaration, there being no reference to the stipulation that all the timber was to be sound. But the action is brought to recover the contract price of the timber, and is not for unliquidated damages merely, the first count being on an account annexed to the writ, for one hundred cords of logs.

Where a contract has been performed on the part of the plaintiff, and has resulted in an obligation to pay money, so that there is nothing but a mere debt or duty to be paid or performed, a general count may be maintained. Mitchell v. Gile, 12 N. H. Rep. 390. It is not necessary, therefore, to decide whether the consideration would be sufficiently stated, if nothing but a special count could be sustained. The important question in the case relates to the mode of measuring the logs.

The plaintiff agreed to deliver to the defendant “ one hundred cords of logs.” Where there is nothing to indicate the mode in which they should be measured, the usual method adopted in measuring wood for fuel, should be followed, because that would be the general understanding of these words. Such must be the construction now, unless there be something in the contract to modify it.

But the language of the contract • specifying the manner in which the logs are to be measured, which is the matter relied on by the defendant, is as applicable to one method of measurement as to the other, and does not, in our judgment, require the solid contents of each log to be ascertained. There must therefore be Judgment on the verdict, At a subsequent trial of the case, on the part of the plaintiff, evidence was introduced, tending to prove that logs were drawn by Hal§, and delivered at the place specified in the contract, and that a large part of them were hauled by Handy to his mill, some miles distant.

Before all the logs were' delivered at the place specified, and while a part of them still remained at that place, not drawn away by Handy, Hale procured Mr. M. W. Harris, of Harrisville, who was a sworn surveyor of cord wood, to measure the logs he had delivered upon this contract. Hale and Hams went first to Handy’s mill, and found Handy "there. Hale told Handy he had come to measure the logs, and asked Handy if he had any objection to Harris, and he made none. Handy said if Hams would measure the logs in his way, so as to get at the cubic contents, he had no objection to his measuring them.

A part of the logs- were measured at Handy’s mill, being chiefly identified by Hale’s mark, a part at the place of delivery mentioned in the contract, and the rest upon the sled, as they were hauled through the - village of Harrisville, towards that place. A part of the logs were measured in a pile, and a part were scattered about, so as to render it difficult to measure them. The scattered logs were measured separately, and the surveyor made such allowances. as he judged proper. The measure of the logs delivered, as found by Mr. Harris, was one hundred and ten cords and three and three-fourths cord feet.

The parties differed in their construction of the contract. Handy contended, that the dimensions of each log were to be separately ascertained, so as to make the whole solid measure; while Hale contended that the logs were to be measured in a pile, in the usual manner of measuring cords of firewood. It appeared that Harris measured the logs, as firewood is usually measured, making such allowances as he judged necessary to make it equal to well packed wood, and to make all, which was measured, sound logs, free from rots and gnarls.

The defendant offered evidence tending to show that the quantity of logs was materially less than it was found by Harris’s measurement. The plaintiff objected to this evidence, on the ground that the parties were bound by the measurement of Harris, as a person designated by the agreement to make it. The court held that the evidence was inadmissible.

The defendant then offered to impeach Harris’s measurement, as being made materially too large, by fraud or mistake of said Harris, and for this purpose proposed to show that the logs, when measured separately, measured a little over sixty-six cords, solid measure, and then to show by witnesses, who had measured logs both ways, that sixty-six cords, measured separately, would be equivalent to about eighty-two cords, measured in the pile. He did not propose to offer any other evidence of mistake or fraud, except, that relating to these measurements, and the measurement of Harris as before stated.

To this evidence the plaintiff objected, and the court held it incompetent. To these rulings the defendant excepted. Cushing, for the plaintiff. No objection was made that the logs were not piled up. Measuring logs not piled is a matter of skill and judgment. The party had no right to call in any other person.

It was said that Harris was fraudulent or mistaken, and a witness was offered who had measured the logs separately, and who said he could judge what would be the amount of the logs if piled. .This was substituting another for him whom the parties had agreed on, and was merely setting his judgment against that of Harris. No fraudulent conduct is shown. To prove a new agreement it was proved only that the plaintiff had paid that the logs were to be measured separately. Chamberlain, on the same side.

The defendant then proposed to show, that after the execution of the written agreement shown in this case, the plaintiff and defendant agreed to a modification of the terms of the writing, in respect to the measurement of the logs; so that the logs should be measured separately, by taking the length and circumference, and thus ascertaining the cubic contents of each log, and making each cord entirely solid.

For this purpose he offered evidence of what Hale told third persons, as to the manner in which the logs were to be measured, to the effect, that the logs were to be measured separately, by taking the length and circumference, unaccompanied by any statement of a change of the bargain, or allusion to any such change. To this evidence the plaintiff objected, and the court held it incompetent. To this ruling the defendant excepted. A verdict was taken for the plaintiff, which the defendant moved might be set aside by reason of the foregoing exceptions. I.

The parties agreed upon the person who was to measure the logs, and are bound by his admeasurement. ■ II. The evidence offered to show fraud or mistake in Harris was merely the judgment of a stranger, against the admeasurement of the arbitrator selected by the parties. III. The testimony offered is incompetent to show any change by the parties in their written contract. Wheeler 8f Faulkner, for the defendant. The defendant was not bound by the measurement of Harris, unless it was fairly made in good faith.

It may be impeached by showing fraud or mistake, and the question as to the quantity of logs would then be for the consideration of the jury, regarding all the evidence. .The most that can be claimed for the measurement of Harris is, that it should have the effect of an award. When an arbitrator commits gross errors and mistakes, or acts corruptly, his •award is not binding. Bean v. Farnum, 6 Pick. 269.

This may b.e pleaded in bar, and a plea that arbitrators omitted to take into consideration in their award, certain promissory notes which were laid before them, and which the defendant was entitled to claim of the plaintiff, was held good on demurrer in Bean v. Farnum. From the nature of the case, no measurement can be more exact than in ascertaining the cubic contents of each log, and when the equivalent in cord measure has been found by actual experiment, this is competent evidence for the jury as to the amount of logs, and as to the question of mistake or fraud in the original measurement.

A difference of eighteen cords in the measurement of one hundred cords of logs is not so trifling in amount that the jury would be bound to treat it as a mere difference in judgment between the surveyors. The court erred in rejecting the evidence of the quantity of logs, and especially of the subsequent measurement.

The declaration's of the plaintiff subsequent to the execution of the written contract, that the logs were to be measured separately, and the cubic contents ascertained, and that the cords were to be solid measure, were competent to be submitted to the jury, as tending to show a modification of the original contract, and were improperly excluded. Davenport v. Mason, 15 Mass. Rep. 85; 1 Greenl. Ev. § 304. Gilchrist, C. J. We have already held that the logs mentioned in the contract are to be measured as firewood, is usually measured for fuel.

It is now contended that Harris is to be regarded as a referee, and that having exercised his judgment and discretion in the matter submitted, his award is to be final and conclusive. If we consider him as a referee, his award may be impeached for fraud, corruption or mistake. No fraud or corruption are supposed to exist here, but it is alleged that he has made a mistake in his measurement. An award-may be vacated at common law by evidence of mistake. Brown v. Bellows, 4 Pick. 192; Bean v. Farnum, 6 Pick. 269.

But this mistake is not an erroneous judgment merely on the merits, for on that point the award of referees is conclusive, Carey v. Wilcox, 6 N. H. Rep. 177. When the mistake is one simply of a fact not involving the exercise of such a judgment as a tribunal must exercise upon the merits of a question where conflicting claims are to be examined and the credibility of witnesses to be weighed, but is one of mere arithmetical computation, there seems to be no reason wThy the matter may not be inquired into in a suit at law.

As to the question whether the evidence shows any mistake, the defendant proposed to show that the logs, measured separately, contained over sixty-six cords solid measure, and then he wished to prove by persons who had measured logs in both ways, that sixty-six cords, measured in this way, would make only about eighty-two cords measured in the pile, Harris having estimated the quantity to be one hundred and ten cords. Now this is hot the opinion of witnesses placed in opposition to the opinion of the referee. It is simply the result of the experience of persons who have had an opportunity to acquire it.

They have measured logs in both ways, and such is the fact, as they have found it to exist, arid as such it tended to show a mistake, and should have been submitted to the jury. We have thus far gone upon the ground that Harris was a referee. But we do not consider him as occupying the position of a referee, in the ordinary sense of that word. It is true, he must to a certain extent have exercised his judgment, for it is difficult to suppose a case where that must not be done.

But his duty was ministerial rather than judicial in its character.' He was to measure a quantity of logs as firewood is usually measured, and to hold that he was invested with the powers of an arbitrator would be to give him a character which, we think, the parties never intended. The evidence of the plaintiff’s declarations iriust be regarded merely as expressing his view of the true construction of the contract. It by no means shows any agreement with the defendant to modify the contract, and the ruling of the court excluding it was correct.

But for the reasons stated above, the plaintiff is not entitled to judgment. Verdict set aside.