August 10. J915. 



Lumbermen as Expert Witnesses 



Every hour of tho day that courts aro in session lumbermen are 

 somewhere to be found on the witness stand. They may be there 

 in the capacity of ordinary witnesses in behalf of themselves or other 

 litigants, or they may have been called as experts. The importance 

 of tho distinction between ordinary and export witnesses lies in the 

 fact that the former aro merely permitted to testify to facts that 

 havo come under their observation, whereas experts aro allowed by 

 law to express opinions on facts submitted to them. It is the prov- 

 ince 01 a trial judge and jurors to form their own conclusions as 

 to ultimate facts upon which the result of the case is to turn, but 

 wlien matters are in dispute which involve technical knowledge it 

 becomes necessary to invoke the assistance of men who are specially 

 qualified to pass judgment on the particular points. 



For illustration, the Iowa supremo court has declared that a 

 witness may express his opinion for tho benefit of a jury as to how 

 long white oak timbers can bo used in a bridge without probable 

 decay to an extent which will render tho bridge unsafe. But before 

 he may do this, it must appear that his experience has specially 

 qualified him to form an approximate estimate, and that all essential 

 conditions bearing on the question have been submitted to him. 

 Experts are, also, often permitted to testify concerning the tensile 

 strength of lumber of specific grades and dimensions, although 

 builders, r.ather than lumbermen, are usually called upon under such 

 questions. 



In an interesting case, a lumberman was permitted to give an 

 opinion as to whether two pieces of lumber were originally a part 

 of the same board; and the Alabama supreme court has recognized 

 the propriety of receiving the opinion of an experienced logger as 

 to what constitutes merchantable timber. In another case, the same 

 court declared that an exjjert was properly allowed to state the 

 number of trees on a tract ot land from which suitable cross-ties 

 could be cut, and how many. And in still another Alabama case 

 the supreme court said that there was no error in permitting an 

 experienced lumber dealer and sawmill owner to give the jury the 

 benefit of his judgment as to the standard of quality of certain 

 lumber sold. In Vermont it was decided that a qualified logger 

 could give his opinion as to the proper method of floating logs in a 

 stream. In this case the supreme court said: 



The running of logs in that stream, and through that hulkbead, was 

 not a matter of common knowledge, nor of adequate common Judgment. 

 The experience and observation of the plaintiff gave him the grounds 

 and faculty of an opinion peculiar to himself, and not common to men 

 who had no such e.\i cricnce and observation. In a substantial sense he 

 may be regarded as an expert. 



The supreme court of Minnesota once had occasion to pass upon 

 the question of whether men experienced in floating rafts should 

 be permitted to testify whether a certain place was a safe one, and 

 decided that export testimony was proper. And the highest court 

 in Wisconsin, has held that a witness, if qualified, may state the 

 quantity of logs which a certain force could handle in logging oper- 

 ations. 



Uncertainty in Sales Contract 



A contract to deliver lumber "f. o. b. f. a. s. " vessel is unen- 

 forceable as being uncertain in the terms of delivery, since " f. o. b. " 

 requires delivery on board at the seller 's expense, and " f . a. s. " 

 merely requires delivery within reach of the vessel's loading tackle. 

 (Alabama supreme court, McGowin Lumber & Export Company vs. 

 B. J. & B. F. Camp Lumber Company, 6S Southern Keporter 2G3.) 



Liability of Steamship Companies 

 A company engaged in transporting lumber shipments for others 

 between points in different states may validly provide in a bill of lad- 

 ing that it shall not be liable for loss of freight by fire not at- 

 tributable to fault on its part. (Georgia court of appeals, Canby vs. 

 Merchants' & Miners' Transportation Company, 85 Southeastern 

 Reporter, 361.) 



Claims for Delays in Transportation 



As a general rule, when a shipment of goods is made by a seller 

 to the buyer as consignee, title to the property vests immediately 

 in the purchaser, so that the seller is not concerned legally in any 

 negligent failure on the part of the carrying railway company to 

 make prompt delivery of the freight at its destination. However, 

 if the seller reserves title in himself during transportation, as where 

 freight is consigned to tho shipper's own order, an unreasonable 

 delay in carriage will exonerate the buyer from accepting delivery, 

 leaving the seller to seek redress against the railway company; 

 (Arkansas supreme court, Isbel-Brown Company vs. Stevens Grocer 

 Company, 175 Southwestern Reporter 1158.) 



Countermand of Manufacturing Contracts 



Since one who is aggrieved by breach of a contract is bound to 

 minimize his loss as far as possible, on being advised of the other 

 party's default, and since an unperformed manufacturing contract 

 may be repudiated subject only to liability in damages, the fact that an 

 agreement for the manufacture of certain articles contains a clause 

 to the effect that the contract shall not be subject to countermand on 

 the buyer's part does not entitle the seller to proceed with the 

 manufacture afer being advised of the buyer's repudiation of the 

 contract. (Arkansas supreme court, Williams vs. Moore, 175 South- 

 western Reporter, 1198.) 



Authority of Managing Agent 

 Where an agent was entrusted by the owner with the general 

 management of a lumber business, with authority to contract for 

 hauling of logs to the owner's mill, it was within the apparent 

 scope of his authority to guarantee payment to a third person for 

 teams used by the hauling contractor in moving the logs, and the 

 owner of the business is bound by the guaranty made. (New Hamp- 

 shire supreme court, Atto vs. Saunders, 93 Atlantic Reporter 1037.) 



Conclusiveness of Lumber Inspection 

 Where the parties to a contract for sale of lumber agreed upon 

 an inspector to inspect and grade lumber delivered, his inspection was 

 conclusive upon both parties in the absence of fraud or gross mistake 

 in the performance of his duties. (United States circuit court of 

 appeals, sixth circuit; Herman H. Hettler Lumber Company vs. 

 Olds; 221 Federal Reporter 612.) 



Taxability of Saw Mill 

 If tho owner of a portable sawmill returns it for taxation in the 

 county where he resides, it cannot be taxed in another county in 

 which it may be temporarily situated on the lands of another person 

 in lumbering operations. (Georgia supreme court. Joiner vs. Pen- 

 nington, 85 Southeastern Reporter, 318.) 



Aspen for Mine Timbers 



Another instance of "the stone which the builders rejected the 

 same is become the head of the corner" is to be found on the Manti 

 National Forest in Utah. When a reconnaissance was made of thiB 

 area in 1909 a large amount of aspen was found, but it was consid- 

 ered of so small importance that little attention was paid to it in 

 the estimate. The development of some coal fields nearby created a 

 demand for timber for props and lagging, and as nothing else ap- 

 peared available the aspen was tried for the purpose. It proved a 

 decided success and is the source of several thousand dollars a year 

 to the forest, whUe the other timber has practically no sale. 



Owing to certain designs of some machinery, high-speed belts are 

 sometimes found running so close to feed shafts that they are in- 

 clined to strike the shaft, especially if they are slightly loose. An 

 endless belt will do itself no liarm under such circumstances, but with 

 a wire-laced belt the wire is quickly worn thin and broken. This 

 trouble can be easily overcome by simply cleaning the belt just 

 ahead of the lacing joint and guing on a slice of single-ply belt, 



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