Bondur v. Le Bourne

7 A. 814, 79 Me. 21, 1887 Me. LEXIS 11

Opinion

Virgin, J.

Assumpsit for cutting, peeling and piling 1491¾ cords of poplar lumber for pulp. The defendant was defaulted. The claimant came in to defend against an alleged lien. The-presiding justice, after the default of the defendant, allowed an amendment by striking out the word " peeling,” and the claimant alleged exceptions.

We think the ruling was within the discretion of the judge. Hayford v. Everett, 68 Maine 505 ; Colton v. King, 2 Allen, 317.

We are of opinion also that his ruling was correct in relation to the lien. Sands v. Sands, 74 Maine, 239.

To be sure, the contract was specific in terms to prevent any misunderstanding, and included "peeling and piling,” as well as "cutting,” which term alone is mentioned in R. S., c. 91, § 38, as being the foundation of a lien. But it was poplar, cut into logs of four feet in length, for the particular purpose of being manufactured into pulp. Moreover, the evidence is that it must be "peeled” before it can be thus manufactured, not as in the cases of hemlock because the bark is of any value, but in order to fit it for manufacture, and which is as essential as cutting, and, as one of the witnesses testifies, "peeling is an incident and necessary to it as pulp lumber.”

Of course, it must be "piled” by the chopper, who cuts it by the cord, in order that his surveyor might ascertain the quantity and thereby furnish him the means of knowing how much he was entitled to under the contract which was to be $1.25 per cord.

Exceptions overruled.

Peters, C. J., Walton, Libbey, Foster and Haskell, JJ., concurred.