Mutter v. I. X. L. Lime Co.

BELCHER, C. Plaintiff brought this action to recover from the defendant the sum of $1,599, with interest thereon from June 1, 1892. The complaint contains three counts. In the first count it is alleged that the defendant is indebted to the plaintiff in the sum of $434 for cutting, at its special instance and request, two hundred and fifty cords of pine wood at one dollar per cord, and two hundred and thirty cords of redwood at eighty cents per cord. In the second count it is alleged that the defendant is indebted to the plaintiff in the sum of $1,165, balance due for cutting and delivering, at its special instance and request, twelve hundred and four and three-fourths cords of wood at $2.15 per cord, and for cutting twenty-two and one-half cords of heading bolts at one dollar and ten cents per cord, and that the cutting and [212]delivering of said wood and the cutting of said holts were reasonably worth the prices named. The third count is the same as the second, except that it alleges that defendant promised and agreed to pay plaintiff, at the rates aforesaid, upon the first day of each and every month, for all wood cut and delivered and all bolts cut by plaintiff during the previous month. The answer denies most of the averments of the complaint, and alleges that, before the commencement of the action, defendant had paid plaintiff the sum of $1,449.96, in full satisfaction of all wood cut and delivered by him to it. The case was tried by the court without a jury, and the findings were that the defendant was indebted to the plaintiff, upon the causes of action set up, in the sum of $1,456.99, for which sum and costs judgment was entered. The defendant moved for a new trial, which was denied, and has appealed from the order.

It is claimed for appellant that several errors were committed by the court in its rulings upon the admission of evidence, and that the findings were not justified by the evidence, and hence that the order should be reversed. It is not necessary to notice all of the rulings complained of, as most of them were, in our opinion, correct, but one of them, we think, was clearly erroneous. The plaintiff was a witness in his own behalf, and testified: That he made an agreement with Mr. Blum, the superintendent of the defendant company, to do the work for which he sought to recover under the first count of his complaint, and that in pursuance of the agreement he commenced cutting the wood in November, 1891, and finished the cutting in March, 1892. That he could not tell exactly how much wood he cut, but it was about four hundred cords. That “Mr. Blum agreed to measure the four hundred cords in January, and he didn’t come. The four hundred cords were to be paid for as soon as it was put up in the woods where I cut it. He agreed to pay when it was done, and he didn’t come up to measure it.....By March 4th it was all cut. It was to be all paid for by the 4th of March.....Mr. Blum said he would come in January, and pay for what they had cut, but he didn’t come, but come in March, and he didn’t ■measure, or do nothing.....It was agreed between Mr. Blum and myself that, when the wood was cut and put up, it' should be measured and paid for.....This four hundred cord lot of wood was in a condition last spring—April, May,