controversy. We think the court properly held this testimony incompetent. It appears conclusively that the de

fendant knew at the time he entered into the second contract all the facts that he claimed, on the trial, constituted the fraud. The representations were made before the second contract was entered into, and yet, with full knowledge that these representations were not true in fact, he entered into the second arrangement. By this new agreement, he lost his right to complain of the prior transactions. Craig v. Bradley, 26 Mich. 353, 369; Dailey v. King, 79 Id. 568.

It is next contended that the court was in error in taking the case from the jury. The defendant was permitted to go fully into the case, and his testimony, together with his letters which were introduced in evidence, show that he did not claim that any fraud had been perpetrated upon him until about the time suit was brought upon the note; and the only claim of fraud now made is that plaintiff's agent, Ellicott, represented that certain profits could be made by extending the capacity of the plant. Because these profits were not made, defendant objects to paying the note. It appears, however, that the Citizens' Company was managed by the defendant, as president, with a secretary and superintendent. At the time the estimates for the new arrangement were made, Ellicott was then acting as plaintiff's agent. Plaintiff, in sending the estimates forward, on December 30, 1891, which was seven days before the execution of the second contract, speaking of the showing made by the estimates, stated:

"On this showing, you should have no difficulty in placing the stock. Of course, we cannot guarantee that the result will equal Mr. Ellicott's estimates, but they seem to us to be carefully and correctly made. Stockholders must take their own risk, however."

In view of this statement, it cannot be said that the

defendant had a right to rely upon Ellicott's representations as to profits. But, aside from this, it appears that the defendant, after knowing all the facts, and that no profits were being made, began asking for extensions of time upon the notes, and as late as October, 1892, he wrote the plaintiff that he was negotiating a sale of the whole plant, and if he succeeded he would take the entire of plaintiff's stock and bonds. We think the case falls within the rule of Wylie v. Gamble, 95 Mich. 564. If defendant desired to rescind on the ground of fraud, it was his duty, upon discovery of the facts, at once to announce his purpose to do so, and to adhere to it.

Judgment affirmed.

MCGRATH, C. J., MONTGOMERY and HOOKER, JJ., concurred. GRANT, J., did not sit.

MARTIN BRESNAHAN V. WILLIAM M. Ross.

Logs and logging-Conclusiveness of scale-Question for juryDamages.

1. The rule laid down in Savercool v. Farwell, 17 Mich. 308, Ortman v. Green, 26 Id. 209, and Malone v. Gates, 87 Id. 332, is that when a scaler, agreed upon by both parties to a logging contract to scale the logs cut under the contract, has exercised his judgment in making the scale, and no fraud or mistake in figures is shown, the scale must stand.

2. A contract for the sale of logs provided that no rough, knotty, wormy, or top logs were to be taken; that all logs were to be cut from good, sound, green, body timber; and that the scaler, who was agreed upon in the contract, should scale the logs merchantable. The logs, at the time they were attempted to be scaled, lay only one tier deep on the skidways, were covered with snow from two to two and one-half feet deep, which

was not removed, and the ends were covered with ice. The vendor sued to recover a balance claimed to be due on the contract. No claim was made by the defendant that the scaler was dishonest, or that he in any way attempted to make an unfair scale in the interest of either party; but it was claimed that he made no scale at all, and could make none, under the conditions stated. And it is held that it should have been left for the jury to determine whether the scale was such as the one provided for in the contract; that, if they found that it was not, then they should resort to other means and other measurements to determine the amount of the logs.

3. The vendee accepted some logs which were below the standard fixed in the contract. And it is held that the jury should have determined their reasonable market value, which would be the measure of plaintiff's recovery for said logs.

Error to Bay. (Maxwell, J.) Argued November 2, 1894. Decided January 4, 1895.

Assumpsit.

Defendant brings error. Reversed. The

facts are stated in the opinion.

J. L. Stoddard, for appellant.

Simonson, Gillett & Courtright (H. H. Woodruff, of counsel), for plaintiff.

LONG, J. This action was brought to recover a balance claimed to be due upon a certain contract dated November 24, 1893. By the contract the plaintiff agreed to sell to the defendant all the oak saw logs he might lumber off of certain lands therein described, "for the sum of $10 per M. for same loaded on cars at Roscommon in good shape. All logs to be cut 12, 14, and 16 feet long, and as much as possible 14 feet long, and to be 12 inches and up at the small end. No rough, knotty, wormy, or top logs to be taken. All logs to be cut from good, sound, green, body timber, and not to take more than 10 logs to the thousand. The above logs to be lumbered and loaded on

Logs to be scaled mer

cars on or before April 30, 1894. chantable by Josiah Hoover when there is 100 M. or more on skids." The contract then provides for the time and. manner of payment; and it is conceded that defendant has made payments upon the contract aggregating $1,125. The evidence shows that the plaintiff let the job of lumbering to one Charles Blanchard, and that very shortly after the contract was made the work of lumbering was begun. After the logs were cut and skidded, Mr. Hoover, the scaler mentioned in the contract, went to Roscommon and made a scale. About the middle of March following, the plaintiff began shipping the logs to Bay City. On the arrival of the first train load, the defendant wired plaintiff:

"Come down. Logs will have to be rescaled. About half dead and wormy timber. Cars not half loaded. Load heavier."

Plaintiff did not respond to this message, but kept on shipping the logs, and on the next day defendant wired him again:

"Why don't you come down? I cannot accept the dead and wormy logs."

After all the logs were shipped, the plaintiff wired defendant, on March 22:

"Will be in Bay City at 1 o'clock to-morrow."

Before plaintiff reached Bay City all the logs had been unloaded, and the defendant had commenced sawing. Defendant says he commenced on the day plaintiff arrived; plaintiff says, two days before. Defendant then gave plaintiff to understand that he would not accept the woods scale made by Hoover, but no agreement was arrived at. Defendant had Hoover make another scale, and the railroad company had also made a scale.

the contract after the logs were

No money was paid on

received at Bay City.

Before going north to make the scale, Hoover was notified that he would find some non-contract logs there, of which he was to make a separate scale. He made the scale with this in mind. On the trial the defendant contended that he was not bound by the scale made by Hoover. Hoover was called as a witness by plaintiff, and gave testimony which defendant contends shows that he did not use his judgment in getting at the correct amount, for the reason that the logs were so covered with snow and ice that he could not see them to estimate the quantity and quality of the timber. But it appears that in making the scale he separated the logs, and scaled the non-contract ones as well as the others. There is no doubt about the logs scaled at Roscommon being the same logs which Hoover afterwards scaled at Bay City, but there is a great difference in the two scales. Hoover attempts to account for it by saying he could not see the logs by reason of the snow and ice upon them. He measured one end of the logs, and Mr. Cox, who was also sworn as a witness in the case, measured the other end, and he gave, as he says, the correct measurement to Hoover, who got the contents. testified further as follows:

66

Mr. Hoover

Q. Is the difference in the number of feet in the two scales a difference in the judgment, one place and the other?

"A. No; I couldn't see the logs in the woods.

"Q. Is it, or is it not, a fact that the difference in your scale is a difference simply in judgment of one place and the other?

"A. No; I told you I didn't see the logs in the woods. They were buried in the snow, and here they laid out so I could see the culls. Lots of the logs there ain't a board

in.

66

Q. Is the difference in the quantity of the logs in one place and the other a difference in your judgment in the two places?

"A. Certainly there is a difference in judgment.