CONTRACTS FOR THE FLOATING OF LOGS 219 



driving. : The contractor must be prepared to meet 

 ordinary contingencies. - However, the failure of water 

 has been held to excuse performance where the terms of the 

 contract did not specifically require an unconditional per- 

 formance. 3 The obligation assumed in an agreement to 

 drive certain logs is not affected by the failure of the other 

 party to furnish the whole amount of logs contemplated by 

 the contract, 4 and where a contractor had failed to drive 

 logs within the time agreed, a Michigan court refused to 

 take judicial notice of the alleged fact that the streams in 

 the northern peninsula of that state were not open on April 

 first of any year for the driving of logs. 5 The compensa- 

 tion per thousand feet or other unit fixed by a contract is 

 recoverable only for the logs actually driven and delivered. G 

 Recovery at the same agreed rate can be had for the driving 

 of additional logs, 7 or for extra expenses for which the 

 original contract contemplated additional compensation, s 

 but parol evidence of an agreement inconsistent with the 

 written contract will not be accepted. 9 The measure of 

 damages for a failure to drive logs is the actual loss suffered 

 by the party owning the logs, 10 including the profit which 

 he might have realized if the logs had been driven as agreed. 



150. Commingled Logs. At common law a party 

 who fails to properly drive his logs and thus obstructs a 

 stream to the injury of another desirous of using it is liable 



1. Mississippi River Losing Co. v. Robson. (IS") Fed. 77:*, 16 C. O. A. 400 (Alfrn'g 



Robson v. Miss. Riv. Log. Co.. 01 Fed. SOU.) 

 Xav. Co. V. Salt etc. Co. 174 Mich. 1, 14O X. W. 505. 



2. Haines v. (iil)son, 115 Midi. 131; Oarvin v. Gales, 7U \Vis. 51:5; Godkin v. Mona- 



han, s:5 Fed. 1 iti. 



:j. Clarksville Land Co. v. ITarrinian, (IS X. H. :(71, 41 All. 527; Hut see Keystone 

 Lbr. ,V Mfg. Co. v. Dole. 4:5 Midi. :?70. 



4. Boody v. (ioddard, 57 Me. (102. 



5. Haines v. Gibson. 115 Mich. 1:51. 



G. Xav. Co. v. Filer (Midi.) 151 X. W. 1025. 



Gill v. Johnston Lbr. Co., 151 Pa. St. 5U4, 25 All. 120. See Gibson v. Trow 



'WisJ SI X. \V. 411. i Payment to third party for delivery. ) Xoyes v. Marlott, 



150 Fed. 75:5. S4 C. C. A. 40'.). 



7. M (-serve v. Lewis! on Steam Mill Co., 01 Me. 4:iS. 

 X. Davis v. Ladue. 5S Midi. 220, 24 X'. \Y. S71; sV<- Destrehan v. Louisiana Cypress 



Lbr. Co., 45 La. Ann. ( .)20. l.-t So. 2:50. 40 Am. Si, Rep. U05: Mississippi Rafting 



Co. v. AnUeny, IS Minn. 17.: Lbr. Co. v. llotard 142 I\y. :UO. i:U S. \V. i:W. 

 0. Mcjokins v. Xowberry, 101 X. C.. 17; .See Johnson v. Cranage, 45 Midi. 14. 

 10. Parks v. Libby, ')2 Me. m. 42 All. 31 S; Whalon v. Aldridi, S Minn. :540: Palmer 



v. Penobsoot Luml)ering Asso. 90 Mo. 10U; .sVc Penobsoot Lumboring Asso. 



v. Bu.ssell, 02 Me. 250. 



