January 10, 1916 



Queries on questions arising on any points involring the law as it is applied to lumhering and allied industries loill 6e given proper expert 

 attention through this department if submitted to Hakiiwood RECtntD. There iinll he no charge for such service, but Hardwood Record 

 reserves the right to publish questions and answers without designating names or location of inquiries unless spGCificallt/ requested not to do so. 



Measurement of Logs 



The Louisiana law adopting the Doyle rule as the formula for meas- 

 uring timber in that state does not prescribe that the diameter of logs 

 shall be measured only at the small end. The rule, being merely a 

 formula for computing the board measure from the dimensions of a 

 log, has nothing to do with the place or manner of measuring the 

 diameter. The place or manner of measuring the diameter of forest 

 timber is subject to the agreement of the parties interested in a log 

 scale; and, in the absence of an agreement, it is the province of the 

 courts to determine how and where the diameter shall be measured so 

 as to give fair and accurate results. As the quantity of lumber that 

 can be sawed the full length of a log is determined and controlled by 

 the diameter at the small end of the log; that diameter alone should 

 be measured in computing the board measure of sawlogs. On the 

 other hand, it is correct to take the average or mean diameter in 

 measuring long timber that must be cut into sawlogs for the mill. 

 (Louisiana supreme court, Peter vs. Owl Bayou Cypress Company, 

 69 Southern Eeporter, 840.) 



Breach of Lumber Sales Contracts 



When a contract for sale of lumber provides for delivery to the 

 buyer at the place of shipment, the seller agreeing to load, upon 

 whom does the duty fall to secure the cars? Answering this question 

 in a suit brought to recover damages for breach of contract to sell 

 and deliver certain quantities of lumber, the supreme court of appeals 

 of West Virginia said in the late case of Wiggin vs. Marsh Lumber 

 Company, 87 Southeastern Reporter, 194: 



The duty of securing cars, selecting the carrier and giving shipping in- 

 structions devolved on plaintiff. Without performance of these duties de- 

 fendants, of course, could not be required to load the lumber. But the failure 

 to make any one or more of the requisite selections did not exonerate them 

 from the express requirement as to delivery at the time and place specified 

 by the contract, when so ordered. Until assembled in obedience to demand, 

 why sliould plaintiff make any effort to secure cars, elect the carrier, or 

 give. the destination of the desired shipments?" He had a reasonable time 

 after delivery and inspection to exercise the privileges accorded him by the 

 agreement. 



This holding that the duty was on the buyer to furnish the cars 

 depends, however, on the fact that there not only was no contract re- 

 quiring the seller to furnish them, but no circumstances from which 

 an obligation of the latter to furnish them could be inferred. The 

 decision is not necessarily inconsistent with the holding of other 

 courts that the seller's duty to obtain the necessary cars may be in- 

 ferred from custom. Here the decision seems to have been rested 

 on the fact that the lumber was to be inspected by the buyer at the 

 place of shipment before loading, and no shipping instructions were 

 given the seller. 



Other points decided by the West Virginia court in the same case 

 are as follows: Unless otherwise provided in a contract for the sale 

 and delivery of lumber f. o. b. cars, the place of delivery ordinarily 

 is the place for inspection. 



When a contract of sale designates a place for delivery, but gives 

 the buyer latitude as to the time when deliveries shall be made, the 

 seller cannot put the buyer in default by making an unordered delivery 

 at that place. 



Defects in Mill Machinery 



An operator of a ripsaw in a planing mill did not assume the risk 

 of being injured through kicking back of a plank when released by a 

 defective spring in the saw, especially where he had been assured by 

 his foreman that the machine was safe. (Kentucky court of appeals, 

 Hebel vs. Southern Planing Mill, 180 Southwestern Eeporter, 63.) 



In the case of Braley vs. Pine Wood Lumber Company, lately 

 passed upon by the Louisiana supreme court, it appears that plaintiff 

 was injured while feeding a planer in defendant's miU. In aflBrming 

 judgment in his favor, the court held that when an employer knows 

 the danger to which a workman will be subjected, or, in exercising 



ordinary care, sliould know of such danger, the employer must either 

 guard against the peril or warn the employe concerning it, unless the 

 latter is already advised, or unless the danger is obvious to a person 

 of ordinary intelligence and experience. (70 Southern Eeporter, 57.) 



Use of Private Swritch Tracks 



It does not constitute unlawful discrimination for a railway com- 

 pany to refuse to receive shipments of lumber products on a private 

 spur track constructed for the exclusive use of one other than the 

 particular shipper. So holds the Arkansas supreme court in a recent 

 case that involved shipment of staves. 



Effect of Bankruptcy on Timber Contract 



On bankruptcy of a contract puroiiaser of standing timber, after 

 payment of agreed stumpage price but without payment of damages 

 for breach of the contract for failure to remove the timber and clear 

 the land within a certain time, the landowner is entitled to insist upon 

 payment of such damages before being compelled to surrender timber 

 cut to the trustee in bankruptcy. In deciding this point, the California 

 district court of appeals lately held that the landowner was not upon 

 the same basis as general creditors of the bankrupt as to such 

 damages. 



Bank's Right to Conduct Lumber Business 



Although it is a fixed principle of law that a corporation can not 

 make valid contracts involving the engaging in a line of business be- 

 yond the purposes for which the company was organized, the Wash- 

 ington supreme court recently recognized the right of a bank to take 

 over the business of a lumber company with good faith intent to save 

 a debt owing by the latter to the bank. 



Employer's Duty Concerning Machinery 

 In an action for injury to an operator of a ripsaw in a woodwork- 

 ing establishment, the appellate division of the New York supreme 

 court had occasion to apply the legal principle that an employer is not 

 bound to use the newest and most approved machinery; it being suf- 

 ficient that the machines used are reasonably safe, are kept in good 

 repair, and properly protected. (Minsky vs. Offenberg, 155 New 

 York Supplement, 549.) 



Risk Assumed by Lumber Teamster 



A teamster assumed the risk of being injured through collision with 

 the top of a doorway on sudden starting of his team while standing 

 in a driveway, where he was in control of the team and knew as well 

 as his employer did the likelihood of tlie horses starting and also knew 

 that the doorway was too low for him to pass through without stoop- 

 ing. (Iowa supreme court, Plantz vs. Kreutzer & Wasem, 154 North- 

 western Eeporter, 785.) 



Injury in Unloading Lumber 



In sustaining the liability of an employer for injury to an employe 

 struck by a piece of lumber in partial unloading of a car, the Oregon 

 supreme court recently applied the rule that although an employer is 

 not an insurer of the safety of his employes while at work, he is liable 

 for injuries resulting from negligent failure to use such methods and 

 appliances as an ordinarily prudent person would use in the same cir- 

 cumstances to avoid injury to his workmen. 



Sales of Business Good Will 



Under a decision of the supreme court of Arkansas, agreement of a 

 seller of a lumber business not to re-engage in the same line in compe- 

 tition with the purchaser is broken by his mere act in holding himself 

 out as ready to sell lumber. 



Scope of Compensation Acts 



A lumber company must pay an award under the Wisconsin com- 

 pensation act for death or injury of an employe caused by drinking 

 impure water provided by the company for use by its employes, and 

 hence an ordinary action at law does not lie in such case. (Wisconsin 

 supreme court, Vennen vs. New Dells Lumber Company, 154 North- 

 western Eeporter, 640.) 



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