The opinion of the Court was delivered by
Htjston, J.
In this suit the dispute was occasioned by what is too common among men; the party only made half a contract, or made a contract without mentioning some matters which must be agreed on before their bargain had any certainty. The owner or manager contracts with wood-choppers, who cut the wood and put it up in cords. After this is done, the owner or manager, and the chopper go through it and count the cords; unless there is great confidence, this is always done by them when together. If the billets of wood are not four feet long, or if the cords are put up very loose and open, the manager docks the job, that is, he deducts a sixth, fifth, or fourth for bad measure or loose cording, so that what to an inexperienced person would count one hundred cords, is set down and paid for as only ninety, or eighty, or seventy cords. It is remarkable that there is hardly ever a dispute between chopper and manager about this dockage. In some jobs, and with some choppers, there is no dockage; it is agreed that each is a fair cord. The next person engaged is the wood-hauler, who draws this wood from where it is corded to the hearth where it is coaled. The next person is the collier, who charrs the wood and delivers it in charcoal. The wood-hauler and the collier, as well as the chopper, are paid by the cord, and it is obvious, that in making the contract it ought to be distinctly expressed and understood, whether they were to be paid by the cord, as it counted numerically, or by the cord as ascertained by dockage or ad[65] justment between the chopper and manager; and in counties where much iron is manufactured this is always settled in the bargain. Having presided in the Common Pleas ten years, in counties where there were many iron-works, I can say that at first some such disputes as this came into court; but this soon ceased. All careful iron-masters, and wood-haulers, and colliers made this an express part of their bargain. I know of no usage about it. In Centre and Huntingdon counties it was always a part of the contract, when I was there. Time', and all contracts being in the same way, may have introduced a general understanding or usage, which is known and acquiesced in by all parties, and which, without being expressed in point of fact, is understood by each party in every contract on the subject. The want of this provision in the contract has given rise to all, or all but one, of the difficulties made in this cause.
A former manager was dead. In one of the books of the furnace was set down the number of cords cut by each chopper who cut wood in this coaling job—and opposite each was written the number of cords docked from each chopper. This was offered in evidence by the defendant, to prove the number of fair cords coaled. I think this would be an unusual book where I have been. I think the chopper who has finished a job has on paper the amount he claims; but, so far as I remember, the manager never enters in furnace books any thing but the number of actual fair cords settled, or in their phrase, “ taken up”; but I do not rely on that. If the settlement of the number of cords with the choppers could also establish the number of cords with the wood-hauler and collier, it must be because the agreement was that cords were to be so estimated, and not by counting them as they in number met the eye; besides, from the paper book, it does not appear when this dockage was made, nor were the accounts of the wood-chopper produced to show that they settled according to this dock-age, nor were any of the wood-choppers called to prove this. The wood-haulers seem to have charged for drawing the wood to the pits, counting the cords as they stood. The dispute was for what kind of cords the plaintiff should be paid. A settlement with the choppers, without it appearing when made, was no evidence of the contract between plaintiff and defendant, or wood-haulers and defendant. There was another objection to it; it was not, and did not purport to be an account between each wood-chopper and Gamber, but entered at one time, on one page, for the purpose of settling with the plaintiff in this cause.
Cowpick, who seems to have been the manager and clerk, leaves all as uncertain as ever. He says, “ when the collier is obliged to make a yield, he takes up the wood himself, (that is, he estimates how many fair cords there are); nothing was said about the yield, when he met to take the coaling, between him and me. It is the custom, if the accounts are all in, and.it is shown to the [66] collier, and he is satisfied, he takes it at an estimate. I do not say who this wood was taken up by; the last entry of the wood was made by methus leaving it as loose a bargain as was ever brought before a court.
There was then evidence given, that, on two occasions, a pit was seen blazing out. This proves nothing; it occurs in every job of 2500 cords more than twice. A pit may blaze out with the most skilful and careful collier; it may do so, and no injury worth naming result from it. If it were suffered to proceed until a large part of the wood was consumed, it is a different matter.
Not the least remarkable part of this case is, that the manager or owner could give no account of the number of loads of coal delivered by Wolaver. One witness states that he said he sent 434 loads. It was also said the loads were estimated from 150 to 170 bushels. This again was a looseness in doing business new to me. On such testimony, much must be left to a jury.
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The opinion of the Court was delivered by
Htjston, J.
In this suit the dispute was occasioned by what is too common among men; the party only made half a contract, or made a contract without mentioning some matters which must be agreed on before their bargain had any certainty. The owner or manager contracts with wood-choppers, who cut the wood and put it up in cords. After this is done, the owner or manager, and the chopper go through it and count the cords; unless there is great confidence, this is always done by them when together. If the billets of wood are not four feet long, or if the cords are put up very loose and open, the manager docks the job, that is, he deducts a sixth, fifth, or fourth for bad measure or loose cording, so that what to an inexperienced person would count one hundred cords, is set down and paid for as only ninety, or eighty, or seventy cords. It is remarkable that there is hardly ever a dispute between chopper and manager about this dockage. In some jobs, and with some choppers, there is no dockage; it is agreed that each is a fair cord. The next person engaged is the wood-hauler, who draws this wood from where it is corded to the hearth where it is coaled. The next person is the collier, who charrs the wood and delivers it in charcoal. The wood-hauler and the collier, as well as the chopper, are paid by the cord, and it is obvious, that in making the contract it ought to be distinctly expressed and understood, whether they were to be paid by the cord, as it counted numerically, or by the cord as ascertained by dockage or ad[65] justment between the chopper and manager; and in counties where much iron is manufactured this is always settled in the bargain. Having presided in the Common Pleas ten years, in counties where there were many iron-works, I can say that at first some such disputes as this came into court; but this soon ceased. All careful iron-masters, and wood-haulers, and colliers made this an express part of their bargain. I know of no usage about it. In Centre and Huntingdon counties it was always a part of the contract, when I was there. Time', and all contracts being in the same way, may have introduced a general understanding or usage, which is known and acquiesced in by all parties, and which, without being expressed in point of fact, is understood by each party in every contract on the subject. The want of this provision in the contract has given rise to all, or all but one, of the difficulties made in this cause.
A former manager was dead. In one of the books of the furnace was set down the number of cords cut by each chopper who cut wood in this coaling job—and opposite each was written the number of cords docked from each chopper. This was offered in evidence by the defendant, to prove the number of fair cords coaled. I think this would be an unusual book where I have been. I think the chopper who has finished a job has on paper the amount he claims; but, so far as I remember, the manager never enters in furnace books any thing but the number of actual fair cords settled, or in their phrase, “ taken up”; but I do not rely on that. If the settlement of the number of cords with the choppers could also establish the number of cords with the wood-hauler and collier, it must be because the agreement was that cords were to be so estimated, and not by counting them as they in number met the eye; besides, from the paper book, it does not appear when this dockage was made, nor were the accounts of the wood-chopper produced to show that they settled according to this dock-age, nor were any of the wood-choppers called to prove this. The wood-haulers seem to have charged for drawing the wood to the pits, counting the cords as they stood. The dispute was for what kind of cords the plaintiff should be paid. A settlement with the choppers, without it appearing when made, was no evidence of the contract between plaintiff and defendant, or wood-haulers and defendant. There was another objection to it; it was not, and did not purport to be an account between each wood-chopper and Gamber, but entered at one time, on one page, for the purpose of settling with the plaintiff in this cause.
Cowpick, who seems to have been the manager and clerk, leaves all as uncertain as ever. He says, “ when the collier is obliged to make a yield, he takes up the wood himself, (that is, he estimates how many fair cords there are); nothing was said about the yield, when he met to take the coaling, between him and me. It is the custom, if the accounts are all in, and.it is shown to the [66] collier, and he is satisfied, he takes it at an estimate. I do not say who this wood was taken up by; the last entry of the wood was made by methus leaving it as loose a bargain as was ever brought before a court.
There was then evidence given, that, on two occasions, a pit was seen blazing out. This proves nothing; it occurs in every job of 2500 cords more than twice. A pit may blaze out with the most skilful and careful collier; it may do so, and no injury worth naming result from it. If it were suffered to proceed until a large part of the wood was consumed, it is a different matter.
Not the least remarkable part of this case is, that the manager or owner could give no account of the number of loads of coal delivered by Wolaver. One witness states that he said he sent 434 loads. It was also said the loads were estimated from 150 to 170 bushels. This again was a looseness in doing business new to me. On such testimony, much must be left to a jury.
The court said, “ you will bear in mind there was no special contract that the plaintiff should produce for his employer any given number of bushels of coal per cord. Hence we say to you, under the evidence, the plaintiff was bound to coal the wood in such manner as to produce a reasonable and fair yield, according to the kind of wood from which it was made. The defendant must bear all the loss of any depreciation of quantity of coal from the number of cords of wood, unless there was gross neglect on the part of the plaintiff in his labour.” This is all a correct statement of the law, except the conclusion of the last sentence, and I feel convinced the expression gross neglect was caught up from a repetition of the phrase by defendant’s counsel; it is inconsistent with requiring only a reasonable and fair yield in the previous sentence; a want of reasonable care and skill was the expression corresponding with what had been correctly said before; and this is not so strong as gross neglect. I would not, however, have been willing to have sent the cause back for a single strong expression; but in several succeeding paragraphs the jury are asked “ if they could see any gross neglect or wilful misconduct in his coaling;” again, “ unless he was guilty of great neglect, or of wilfully destroying the wood;” and again, “ the plaintiff is not answerable unless he was guilty of gross neglect or wilful misconduct as before stated.” We all think this was stating the matter too strongly; ordinary care and ordinary skill are required from all persons employed in any business. Although I have not heard of an apprenticeship to coaling, it is pretty much a trade generally learned by working as a hireling one or more seasons with one who understands it. The plaintiff- and defendant were not bound to any particular time; Wolaver was to go and do as well as he could; from which it might be suspected the wood was not the best. Besides, there was proof, that Gamber in the summer said he was a good collier, and if he was charged with not sending a fair yield, it [67] might have-been expected the person charging him would have been able to show how much he did send. Between 150 and 170 bushels there was a difference of 20; this multiplied by 434, makes a large quantity.
The second and third errors are without foundation in fact; the counsel who assigned them had forgotten that defendant’s book was rejected, and the wood-haulers did prove the number of cords they hauled to the pits; but a judge is certainly not wrrong in stating what witnesses have sworn to, and leaving their credibility to the jury. But this is not all; the judge told the jury, near the conclusion of his charge, that the important point was, how many cords of wood were coaled. “ If the wood-choppers cheated Gamber, and made bad cords, and in ranking the wood there were not full cords according to honest measurement, then the plaintiff cannot take the wood as measured by the wood-choppers, as the true guide in estimating the quantity, where he was coaling by the cord; nor is he bound by any deduction which was made upon the choppers or teamsters, unless it was an honest and fair deduction. Should the jury believe it is, they may adopt it as the number of cords coaled; if they believe the wood was honestly and fairly ranked by the choppers, they may adopt that as their guide.” Now, surely the defendant cannot object to this, and they ought not to have supposed this court would not distinguish between the judge’s statement of what was proved by witnesses, and what he stated to the jury as their duty, especially as he added, “ it is for you to say what number of cords of wood was coaled by the plaintiff, and for these he is entitled to recover 35 cents per cord, should you believe that was the price, agreed on by the parties.”
On the fourth error we have said there was a mistake, in putting it too strongly on gross negligence or wilful misconduct.
The fifth is the fourth over again-
The remaining three I shall dispose of by saying there is nothing in them. If defendant alleged he did not get coal enough, he ought to have objected before the season was ended, arid he ought to have shown what he did get, and not left it all uncertain, to the amount of 8680 bushels, or 20 times 434.
Judgment reversed, and a venire de novo awarded.