INSTRUCTIONS TO JURIES 209 



tained, 1 and a charge to a jury that a defendant could not 

 be bound by any agreement between the plaintiff and the 

 sealer as to the scale was held to remove the prejudice 

 against the defendant which might have resulted from the 

 admission of evidence from the plaintiff as to such agree- 

 ment. 2 Under a written contract in Michigan for the 

 sale of all merchantable white pine to be cut from certain 

 land, with a provision that the timber be measured by the 

 Scribner scale with allowance for all defects, a controversy 

 arose as to the merchantable contents of the logs delivered. 

 The seller contended that the purchaser should pay for the 

 number of feet Scribner scale, less proper allowance for 

 visible defects, in every log which the sealer considered mer- 

 chantable, irrespective of the grade of lumber which could 

 be obtained from the log. The purchaser contended that the 

 sealer should make such allowance as to insure that the pur- 

 chaser obtained the number of feet of merchantable lumber 

 that the scale rule gave as the contents of a log, exclusive of 

 mill culls, even though such culls might have a market value. 

 The instructions given the jury by the trial judge were to the 

 effect that a merchantable log was one which contained 

 lumber in such quantity and of such quality as to make it 

 worth taking to a mill for manufacture and that the scale 

 provided for by the contract did not contemplate the ex- 

 clusion of mill culls. The question of whether the scale of 

 the logs which had been made by direction of the purchaser 

 had excluded mill culls in addition to visible defects was left 

 to the jury. The jury rejected the defendant's scale and 

 based their verdict for the vendor of the logs upon a measure- 

 ment made under his direction. The instruction and find- 

 ing of the jury were sustained by the Supreme Court of 

 Michigan on appeal by the purchaser. 3 



1. Hopkins v. Sanford, 41 Mich. 243, 2 N. W. 39; see Sullivan v. Ross, 124 Mich. 



287, 82 N. W. 1071. 



2. Malone v. Gates, 87 Mich. 332, 49 N. W. 638; see also Mason v. Phelps, 48 Mich. 



126, 11 N. W. 413,. 837; Horton v. Harbridge, 127 Pa. St. 11, 17 Atl. 675. 



3. Gordon v. Cleveland Sawmill & Lbr. Co. (Mich. 1-900) 82 N. W. 230. 



