Saunders v. Clark

106 Mass. 331

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1871
• Status: Published

Opinion

Ames, J.

It appears that the plaintiff’s logs were caught in the boom, and accidentally mingled with those of the defendant, and that the attempt to separate them had been only partially successful. The plaintiff insists that his logs were marked so as to be distinguishable, and that the defendant undertook to pass them through the boom, but that instead of doing so he appropriated. a portion of them to his own use. If the evidence had stopped here, it would have tended to make a case of wrongful conversion, rather than a contract; but the evidence went further, and tended to show that the defendant declared that he had kept an account of all the logs so appropriated, and that he offered to pay for them. This declaration and offer, if made to the plaintiff’s agents, having the management and control of his business at Lowell, where the logs were to be manufactured into lumber on his account, would have the same effect as if made to himself. He had a right to accept it at any time before it was retracted, and. his assent may be inferred from hi= acquiescence in the other party’s proceedings, from his omission to make any complaint, or to call him to account in any other form. It was a disclaimer of any intentional trespass on the defendant’s part, and entitled the plaintiff to consider him as a purchaser. The bringing of this action might be considered by the jury as bearing upon the question of his assent to the defendant’s proposition to be charged as a purchaser.

With regard to the alleged usage, the fact that there was only one boom on the river at that time, and that the defendant was the owner of that one, furnishes no objection to the competency of the evidence. There may have been an established and ancient usage, in that locality and in that department of business, of the kind which the plaintiff offered to prove, and the defendant may have habitually complied with it. If so, it was competent for the plaintiff to show it.

The evidence of what it cost to get the logs to Lowell, and what they were worth there, was admissible on the question of damages. Exceptions overruled.