208 INSPECTION AND MEASUREMENT 



i 



long distance. l Evidence as to the conduct of one of the parties 

 or of the sealer and expert testimony is admissible where it 

 tends to impeach the scale. 2 Only when the original scale 

 book or scale bill is not available for use as evidence, or 

 where it is apparent that no record of the scale was made, 

 will secondary evidence be admitted as to its contents. 3 

 Scale bills have been admitted as evidence of the delivery 4 

 or the possession of logs. 5 Courts have held that the 

 phrases, "purchase scale", 6 "dead culls", 7 and "mill 

 run", 8 have a fixed and recognized meaning in law; but evi- 

 dence has been admitted for the purpose of determining 

 whether the phrase "mill tally" in a contract included "mill 

 culls." 9 



145. Court Instructions to Juries. Juries have 

 been instructed by courts to decide whether the parties 

 agreed that the scale of a certain person should be final, 10 

 whether the scale made was such as the contract contem- 

 plated, n and whether there was negligence, mistake or 

 fraud in the scale. 12 Instructions by a court to a jury that 

 a sealer should be held competent if found to be as skillful 

 and reliable as sealers ordinarily were, have been sustained 

 by a higher court. 13 An instruction that a vendor would 

 not be liable for a small shortage when logs were converted 

 into lumber if in scaling the logs himself he had fairly ap- 

 plied the rule ordinarily used in that locality was sus- 



1. Itasca Lbr. Co. v. Gale, 62 Minn. 356, 64 N. W. 916. 



2. McCann & Doherty, 98 Wis. 335; Gates v. Young, 82 Wis. 272; Gardner v. Wil- 



ber, 75 Wis. 601, 44 N. W. 628. 



3. Antill v. Potter, 69 Minn. 192, 71 N. W. 935; Steele v. Schricker, 55 Wis. 134, 



12 N. W. 396; Tewksbury v. Schulenberg, 48 Wis. 577, 4 N. W. 757. 



4. Smith v. Schulenberg, 34 Wis. 41; See Itasca Lbr. Co. v. Gale, 62 Minn. 356; 



Peterson v. South Shore Lbr. Co. 105 Wis. 106. 



5. Clark v. Nelson Lbr. Co., 34 Minn. 280. 



6. Hayes v. Cummings, 99 Mich. 206, 58 N. W. 46. 



7. Brigham v. Martin, 103 Mich. 150, 61 N. W. 276. 



8. Wonderly v. Holmes Lbr. Co., 56 Mich. 412, 23 N. W. 79. 



9. Cornell v. New Era Lbr. Co., 71 Mich. 350, 39 N. W. 7. 



Cf. Salmon v. Box Co. 158 Fed. 300, 85 C. C. A. 551 (As to meaning of "10 and up.") 



10. Brooks v. Bellows, 179 Mich. 421, 146 N. W. 311; Sovereign v. Mosher, 86 Mich. 



36, 48 N. W. 611. 



11. Navigation Co. v. Filer, 151 N. W. 1025 (Mich.) (Fair scale by Doyle Rule); 



Bresnahan v. Boss 103 Mich. 483, 61 N. W. 793; Daggett v. Hay- 

 ward, 95 Mich. 217, 54 N. W. 764; Mann v. Paper Co. 41 N. B. 199. 



12. Sullivan v. Boss, 124 Mich. 287, 82 N. W. 1071 ; Gates v. Young, 82 Wis. 272, 



52 N. W. 178. 



13. Mcllquham v. Barber. 83 Wis. 500, 53 N. W. 902. 



