Tenny & McKenzie v. Mulvaney & Bemis

Citations

• 9 Or. 405

Syllabus

<p>Upon an issue as to the merchantable quality of saw-logs, the testimony of witness that they saw a portion of the lumber manufactured there-fro m, and that all of such portion was “good merchantable lumber,” was competent evidence tending to prove that the logs were merchantable. Testimony that the saw-logs in question were such as were usually manufactured into lumber in the locality where the contract to deliver “ good, sound, merchantable logs” for the purpose of being converted into lumber, was to be executed, and that a portion of them were actually manufactured into lumber there, by the parties to whom such logs were to be delivered under such contract, was admissible for the same purpose, For the same reason the testimony of a witness that he hauled and put into the water, where the logs were to be delivered, a certain portion of them, which were actually received and sawed into lumber by the parties sought to be charged for their stipulated price, under said contract, was also competent evidence on behalf of the parties who under the contra,ct were to deliver “ good, sound, merchantable logs,” even though the description given by the witness in the same answer that “ the logs were average logs, for that timber,” should be deemed at variance with the description of the quality of logs to be delivered in the contract.</p> <p>Where the defendants, in an action on such contract, admit (he delivery of 35,000 feet of logs of the stipulated quality, but deny the delivery of any greater quantity, and the plaintiffs claim to have delivered a much larger quantity, and the bill of exceptions on appeal, fails to show affirmatively that the testimony of a witness, on behalf of the plaintiffs, tending to prove the merchantable quality of a specified portion of the logs in controversy, referred to the portion admitted by defendants, and as to the quality of which there was no issue, the appellate court, in support of the corréctness of the rulings of the court below, ad