George I. Galvin vs. James Thompson & al., 13 Me. 367

After a continuance, the opinion of the Court was drawn up by Weston C. J. By the agreement between the plaintiff and Thompson, each entered into stipulations in regard to the timber to be cut, hewn and transported to tide waters by Thompson. How far each had performed or fallen short of performance, and what claims thence resulted by the one upon the other, depending on facts subsequent to the agreement, could be verified only by parol proof. We are of opinion then that the parol proof offered at the trial by the plaintiff was legally admissible.

And with the aid of that, the condition of the bond in suit, and the award of the arbitrators, otherwise so obscure and uncertain, may be rendered intelligible.

Assuming, as should be done, in determining the question submitted to our consideration, the truth of the facts offered to be proved, it would have been made to appear that Thompson had cut, hewn and driven to tide waters, one hundred and twenty-two tons and three feet of timber; that the plaintiff required it to be placed in Shaiv’s boom at Calais ; that Thompson had appropriated to his own use, thirty-seven tons of the timber; and that he declined to deliver to the plaintiff any part of it, alleging as a reason that he had done him an injury, by interfering in that part of the plaintiff’s township from which by their agreement, the timber was to be taken.

That the plaintiff consented to a reference of their differences, upon the execution of the bond in question. By the condition, Thompson was to abide the award, was to deliver the balance of the timber, being eighty-four tons and eleven feet, also thirty-seven tons of pine timber, or such part thereof as the referees might award. They gave the parties a hearing, and awarded that Thompson should forthwith deliver to the plaintiff at Calais, according to the contract, every ton of timber by him cut and made on the plaintiff’s township the preceding winter.

As this was to be forthwith delivered, they must be understood to mean such only as he had been able to get down. This was one hundred and twenty-two tons; and as he was to deliver every ton, their award embraced both the thirty-seven tons, and the eighty-four tons and eleven feet, mentioned in the condition. This then is covered by the condition, and it is all that was awarded. The plaintiff was thereupon to pay Thompson for the cutting, hewing and driving the timber, according to the contract.

And they required the plaintiff to pay Thompson an additional sum beyond the contrafct of fifty cents, for each ton of timber delivered to him. They designed this probably as an equivalent, for, any injury the plaintiff might have done him, by his alleged interference. And if so, it is an award, upon one of the points in difference between the parties. But if unauthorized, being in the defendants’ favor, it affords no ground of objection on their part. Having decided upon what was in difference between the parties, they leave the timber, not got down that season, to the provisions of the contract.

Thus explained and understood, in connection with the parol proof, the award is certain to a common intent, it follows the agreement and the submission, or if it departs from either, it does so for the benefit of the defendants; and when carried into effect, it will put an end to the difference between the parties. We do not sustain therefore the objections taken by the defendants’ counsel; the nonsuit is accordingly set aside, and the action is to stand for trial.

If the parties do not adjust it, for every ton of timber, proved to have been cut and got down by Thompson from the plaintiff’s township, and not delivered, not exceeding the two quantities stated in the condition of the bond, the plaintiff is entitled to be allowed the fair value, deducting from tho whole wliat may be due to Thompson for his services, according to the award of the referees.