CUSTOM OFTEN CONTROLS 201 



less than one inch in thickness might be considered stand- 

 ard, x while others have discouraged commercial customs 

 which allowed a short count or measure, or required an ex- 

 cess. 2 The rejection of the fractions of a foot in measuring 

 has been held legal where such mode of measurement was 

 the established custom. 3 A contract containing a refer- 

 ence to the number of "thousand feet in each raft" has been 

 held to call for linear measure, 4 and one requiring delivery 

 of lumber by the "thousand feet" to contemplate measure- 

 ment by a board rule and not by a log scale. 5 



If a contract does not fix the mode of measurement and 

 there is no statute, the measurement should be made by the 

 customary standard, 6 and if the contract contemplates 

 delivery of a product for a certain market, the customary 

 standard of that market should be used. 7 Where a con- 

 tract provides for the method of scaling to be used, the 

 parties will be bound by the scale made in accordance with 

 that method as customarily applied, even though it be clear 

 that the said method does not give a fair test of the actual 

 board contents of a log, and it be shown that a fairer method 

 is in common use; 8 and unless the contract clearly provides 

 for the use of a different rule, the standard rule of the state 

 will be enforced irrespective of its faults. <J 



1. Act Mar. 10, 17S4, Laws of Com. Mass. 17,80-1807, Vol. 1, p. 104, Gen. Laws of 



Mass., Vol. 1, p. 130, eh. 54. 



2. Conn. Act of 1832, Stats, of Conn., New Haven, ls~>4. p. 024. sec. 15. 

 Me. Feb. 25, 1S2S. Laws Me., Portland. 1S31, Vol. 3, p. 255, eh. 404. 

 Md. Code of 1SOO, p. 700, eh. 90. Sec. 22. 



See Pardon's Digest of Laws of Perm., 1<)03, 13th Ld. Stewart, p. 235(1. sec. 57. 



3. McGraw v. Sturgeon. 29 Mich. 420; Merrick v. Mc.Xally. 20 Mich. 374. 



4. Brown v. Brooks. 25 Pa. St. 210. 



5. Dutch v. Anderson, 75 Ind. 35; l,nt set Hopkins v. Sanford. 41 Mich. 243. 2 X. \V. 



3' 1 . ( 'f. Farmer's High School v. Potter. 43 Pa. 131, holding that in view of 

 state act of Apr. 15. 1S35 (P. L. 1S35, p. 3M i adopting board foot as standard, 

 contract for sale of Mooring one and one-quarter in. thick by thousand called 

 for payment for the additional thickness. 



(i. Sanderson v. Hogan, 7 Fla. 31S; Strickland v. Kichardson, 135 C'.a. 513. 09 S. K. 

 871; Dam etc. Co. v. Clothing Co. 102 Me. 257: 00 All. 537: Heald v. Cooper, 

 8 Me. 32; Boyce v. Boyce, 124 Midi. 090, S3 N. W. 1013: Hale v. Handy. 20 

 N. H. 200; McKinney v. Matthews. 100 X. C. 570, S2 S. K. 1030; Richardson 

 v. Baker, 83 Vt. 204, 75 All. 151; Mclntyre v. Rodgers, 92 Wis. 5, 05 X. \V. 

 503; Mann v. Paper Co. 41 XT. B. 199 (Pulpwood). 



7. Merick v. McXally, 20 Mich. 374; .Sec Peterson v. Anderson. 14 Mich. 441 : Smith 



v. Kelly, 43 Mich. 390; Dunk-vie v. Spangenbcrg. 00 Misc. 354, 121 X. V. 

 Suppl. 299 (Rule of place of purchase prevails. ) 



8. Heald v. Cooper, 8 Mo. 32; Boyle v. Musser-Sauntry Land Ktc. Co., 80 Minn. 100, 



90 N. W. 319; Hunter v. Felton, 01 Vt. 359; Mcllquham v. Barber, 83 Wis. 500. 

 53 N. W. 902; Fornotte v. Carmichael, 41 Wis. 200. See Baldwin v. Cornelius, 

 104 Wis. 08. 



9. Fortescuo v. Black Bayou Lbr. Co., 118 La. 725, 43 So. 387; Bulkley v. White 



& Wheeless. 113 La. 396. 



