206 INSPECTION AND MEASUREMENT 



absence of proof of a special agreement, it will be assumed 

 that the parties contemplated a scale in accordance with the 

 custom of that locality, 1 or by the regularly appointed 

 official. 2 And even where the written contract specifies 

 the sealer or method of scaling, evidence is admissible to 

 show a subsequent mutual agreement that the scaling 

 should be done by another party or by another method. 3 

 If the sealer named in the contract, or otherwise mutually 

 agreed upon is dead, his scale will be presumed to be honest 

 and accurate and oral evidence as to what he did and said 

 at the time of the scaling will be admissible. 4 



Although the scale of logs or lumber by a sworn officer 

 is prima facie correct, 5 and a properly identified scale bill 

 is admissible as evidence, 6 without the presence of the 

 sealer on the stand as a witness, 7 even when not certified 

 as required by statute, 8 evidence is admissible to sho^ 

 negligence, 9 mistake, 10 incompetency n or fraud. 12 Proof 

 of gross mistake is not conclusive evidence of fraud. 13 If 

 the scale was made by an official or an experienced sealer the 

 burden of proof is upon the one attempting to impeach the 

 scale, u but if the scale was made by one employed by the 



1. Heald v. Cooper, 8 Me. 32; Headley v. Hackley, 50 Mich. 43, 14 N. W. 693. 



2. Peavey v. Schulenburg, etc. Lbr. Co., 33 Minn. 45; Herdlc v. Bilger, 47 Pa. St. 



60; Morrow v. Delaney, 41 Wis. 149. 



3. Malone v. Gates, 87 Mich. 332, 49 N. W. 638; Savercowl v. Farwell, 17 Mich. 308. 



See Baker v. Kenney 145, Iowa 638, 124 N. W., 901. 



4. Malone v. Gates, 87 Mich. 332, 49 N. W. 638. 



Iowa 638. 



5. Boyle v. Musser-Sauntry Land Etc. Co., 86 Minn. 160, 90 N. W. 319; Antill v. 



Potter, 69 Mum. 192, 71 N. W. 935; Heilbruner v. Wayte, 51 Pa. St. 259; 

 see Bullock v. Consumers Lbr. Co. (Cal. 1892) 31 Pac. 367; State v. Lumber- 

 men's Board of Exch. 33 Minn. 471. 



6. Haynes v. Hayward, 41 Me. 488; Peterson v. Anderson, 44 Mich. 441; 7 N. W. 



56; Libby v. Johnson, 37 Minn. 220; Clark v. Nelson Lbr. Co. 34 Minn. 289, 

 25 N. W. 628; Smith v. Schulenberg, 34 Wis. 41. See Day v. Gumaer, 80 

 Wis. 362, 50 N. W. 182; Lindsay Etc. Co. v. Mullen, 176 U. S. 126; Glaspie 

 v. Keator, 56 Fed. 203. 



7. Bailey v. Blanchard, 62 Me. 168. 



8. Christie v. Keator, 49 Wis. 640, 6 N. W. 334; Sec Welch v. Palmer, 85 Mich. 310; 



Crane Lbr. Co. v. Otter Creek Lbr. Co., 79 Mich. 307. 



9. Leighton v. Grant, 20 Minn. 345, 355. 



10. Burton v. Mayo, 106 Me. 195, 76 Atl. 486; Sullivan v. Ross, 124 Mich. 287, 82 



N. W. 1071; Malono v. Gates, 87 Mich. 332; Gates v. Young, 78 Wis. 98, 47 

 N. W. 275. 



11. Ortman v. Green, 26 Mich. 209; See Armstrong Furniture Co. v. Kosture, 66 



Ind. 545. 



12. Ozark Lbr. Co. v. Haynes, 68 Ark. 185, 56 S. W. 1068. 



13. Leighton v. Grant, 20 Minn. 345. 



14. Lbr. Co. v. Lbr. Co. 135 La. 511, 65 So. 627; Bank v. Hollingsworth, Co. 106 



Me. 326, 76 Atl. 880; Atwood v. Hub Co. 103 Me. 394, 69 Atl. 622; Nutter v. 

 Bailey, 32 Me. 50-1; Boyle v. Musser-Sauntry Land Etc. Co., 77 Minn. 206, 

 79 N. W. 659. 



