
    No. 2395.
    Ingraham v. Lukens.
    November Term, 1888.
    
      March 23, 1889.
    
      J. F. Rhame and T. G. Barker, for appellants.
    
      F. W. Moise and John S. Wilson, contra.
   Opinion by

Mr. Justice McGowan,

Plaintiff sold all the timber on a certain tract of land of hers to a partnership named A & B, of which L and R were also members, at $1 per 1,000 feet. It was “further agreed that if plaintiff should become dissatisfied with the measurement of the lumber,” that the quantity should be ascertained by the regular lumberman’s rule, specifying it. A & B, without plaintiff’s assent, assigned this contract to a new firm composed of L and R. Plaintiff brought action against L & R, alleging the partnership and that defendants were indebted to her in the sum of $1,433 “for timber and lumber cut and removed from plaintiff’s land.” Defendants, not objecting to the form of the action, denied the indebtedness, and alleged the contract with A & B, its assignment to L & R, and full payment thereunder.

At the trial, plaintiff proved the quantity of timber cut as ascertained by the specified lumberman’s rule, and also the value of timber on like lands near by. Defendants proved receipts by plaintiff of March 22, 1886, “on account of timber cut to date,” of June 8, “for all timber cut to June 1,” of July 24, “in full for timber cut during the month of June, as per statement rendered, E. & O. E.” Held,

1. That plaintiff could sue L & R for the value of the timber cut by them, without regard to her contract with' A & B, another party.

2. That the receipts in evidence did not show an account stated nor estop plaintiff from showing the real amount due.

3. To establish her case, it was competent for plaintiff to show the quantity of timber removed by the lumberman’s rule, which is a measurement of the butts and tops on the cleared land, the timber itself being removed and inaccessible.

4. The application of the lumberman’s rule was not limited, by the contract, to such timber only as should be removed after notice given of dissatisfaction, but was authorized as to all the timber cut from the land.

5. The value of other similar property under similar conditions, was relevant to the issues here involved.

Judgment (Fraser, J.) affirmed.  