A MEASUREMENT MAY BE CONCLUSIVE 203 



scale if no intentional misrepresentation, mistake as to logs 

 to be scaled, or error in computation is proven. l However, 

 the terms of the ccntract may provide that the decision of 

 the sealer shall not be conclusive as to certain matters; 2 

 and to be accepted by the courts as final a scale must have 

 been made in strict accordance Avith the terms of the con- 

 tract, 3 In the construction of the contract due regard will 

 be given to the customs of the locality as to those matters 

 in which the terms of the contract are not explicit. 4 Though 

 a scale report be conclusive as to the part of a lot of logs 

 actually scaled, it will not be final as to any logs that were 

 estimated by the same sealer but not actually scaled. 5 

 If a substantial mistake has been made the courts will cor- 

 rect the scale even though settlement has been made ac- 

 cording to the erroneous scale. G A mutual agreement 

 that a rescale of logs or a remeasurement of lumber shall be 

 made as a basis for payment affords a sufficient considera- 

 tion to support a new contract. 7 Whether the rule of 

 caveat emptor as to quantity obtains in a sale of a lot of 

 scaled logs, or whether there is an implied warranty by the 

 seller as to quantity will depend upon the terms and con- 

 ditions of the particular contract of sale. 8 



143. Official Inspection and Measurement. In 



jurisdictions where provision is made by law for the scaling 

 of logs or the measurement of lumber by officials whose 

 scale bills or inspection reports are made prima facie legal 



1. M alone v. Gates, ST Midi. 332, 49 N. AV. 03S. 



But sec Southern Lbr. Co. v. Ashor, 01 S. AV. 402, 23 Ky. L. Rep. 901; Robinson v. 

 Fiske, 25 Me. 401 ; Ortman v. Green, 20 Mich. 20!); Xelson v. Chas. Belcher Lbr. 

 Co., SS Minn. 517, 93 X. AV. 001. Holding scale subject to correct io i without, 

 showing of fraud or bad faith, if no provision in contract that scale be c mclusive. 



2. Magco v. Smith, 101 AVis. 511, 7S X. AV. 1(17. 



3. Chase v. Bradley, 17 Me. S9; Kakright v. Torrent, 105 Mich. 294. 03 



Jesmer v. Rines, 37 Minn. 477, 35 N. AV. ISO; Mclntyre v. Rodgers, 



05 X. AV. 503; Nee Bozor v. Sopor Lbr. Co. 70 AVis. 145; Pornotte -. Carrni- 



chael, 41 AVis. 200. 



4. Gordon v. Cleveland Sawmill Etc. Co., 123 Mich. 430, S2 X. AV. 230. Leonard v. 



Davis, 1 Black, (U. S.) 470, 1 7 L. Kd. 222. 



5. Douglas v. Loighton, 53 Minn. 170. 54 N T . W. 1053. Pratt v. Dncey, 3S Minn. 



517; McAndrews v. Sanlee, 57 Barb. (X. Y.) 193, 7 Abb. Prac. X.S.40S; 

 A'aughan v. If owe, 20 AA'is. 497. 



6. Horton v. Harbridge, 127 Pa. St. 11. 



7. Porteus v. Commonwealth Lumber To.. SO Minn. 234. S3 X. AV. 143. sYe'Ycllow 



Poplar Lbr. Co. v. Stephens. 09 S. AV. 715, 24 Ky. L. Rop. 021; Hunter v. Folton. 

 01 Vt. 359, 17 All. 739. 



8. Wonderly v. Holmes Lbr. Co., 50 Mich. 412, 23 X. AV. 79; Ortman v. Greon,'20 



Mich. 209; Day v. Gumaer, 80 Wis. 302, 50 N. AV. 1S2; Gardner v. \Vilber,J~5 

 AVis. 001, 44 X. AV. 028. 



