Opinion
November 1, 1939.
Appeal from Broome County Court.
Present — Hill, P.J., Crapser, Bliss, Heffernan and Schenck, JJ.
The action was brought by plaintiff for breach of contract. Plaintiff alleged that he sold to defendant 39,370 feet, sawed measure, of logs, for which defendant agreed to pay at the rate of eighteen dollars per thousand feet, sawed measure, or the sum of $708.66. Defendant actually paid the sum of $377.37, claiming that on the basis of sawed measure the logs delivered by plaintiff were but 20,861 board feet. In arriving at his figure of 39,370 feet, sawed measure, of logs, the plaintiff took the total of 32,809 feet, the scale measure of logs, and added thereto twenty per cent to arrive at the sawed measure. Plaintiff claimed that it was the custom or usage of the lumber business to add twenty per cent to the scale measure of logs to figure out what the sawed measure would be and introduced a witness who testified as to such usage and custom. The court submitted the case to the jury, charging that if the jury found from the evidence that plaintiff's figures were high or defendant's figures were low, the jury could find some other amount for the plaintiff than that claimed, and, further, that it was a mathematical problem for the jury to determine. No exceptions were taken to the charge and the jury returned a verdict as above stated. There is evidence to support the verdict. Judgment and order unanimously affirmed, with costs.