Herrick v. Eldredge Bros.

123 Me. 562

Opinion

The amount of lumber belonging to the plaintiff taken by defendant’s truck driver, is the only question in dispute.

A tally of the entire pile taken by plaintiff’s son when the lumber was hauled from the mill showed 4879 feet by the mill scale. The. load admitted to have been hauled away contained 3732 feet according to defendant’s tally of the mill scale given by defendant to plaintiff. This tally was not produced by plaintiff, but he testified .to the amount.

■The accuracy of both tallies, as stated by the witnesses was in issue, and this issue as the trial progressed resolved itself into another question which the jury may have considered decisive of the case, viz.: Did the defendant’s servant haul away the entire pile of plaintiff’s lumber?.

Upon this point the evidence was conflicting; the testimony given in support of either contention, if believed, would warrant a verdict. . Reasonable men, wishing to ascertain the truth might arrive at opposite conclusions. The jury found in favor of the plaintiff, that the entire pile was taken, and assessed damages in accordance with the tally of same taken by plaintiff’s son; upon this record we cannot say that they were manifestly wrong; the defendant has not sustained the .burden of so showing.

Motion overruled.