
    Josiah Bruce vs. Miles Sidelinger.
    Lincoln.
    Opinion February 11, 1890.
    
      Lumber. Bark. Sale. Survey. B. S., c. 41.
    The statute, which requires lumber of any kind to be surveyed or measured to ascertain its quantity, does not apply to labor in any way expended on lumber, though to be x>aid for according to the thousands or cords of such lumber; — it applies only to sales of lumber.
    On exceptions.
    At the trial before the jury, the plaintiff was permitted, to testify, against the defendant’s objection, to. his own measurement of the bark peeled and hauled, and his own survey of the logs hauled. The bark and logs were taken from the land of the defendant, under a written contract between the parties, by which the plaintiff in consideration of his services for cutting, peeling and hauling was to be paid at certain stated prices per cord of bark, and thousand feet of logs, respectively.
    The plaintiff did not offer evidence of a measurement by a sworn surveyor.
    The presiding justice instructed the jury, in substance, that the statute which provides for measuring by a sworn surveyor did not apply in the case, and that the plaintiff might prove, by any legitimate evidence satisfactory to the jury, the amount of bark and logs which he cut and hauled under the contract.
    There was a verdict for the plaintiff. The defendant excepted to the admission of the evidence and the instructions to the jury.
    (r. B. Sawyer, for defendant.
    
      L. M. Staples, for plaintiff.
   Peters, C. J.

The.plaintiff sued for his services in peeling bark, cutting logs, and hauling the bark and logs to a place of delivery. He was to be paid by the cord for peeling and hauling the- bark, and by the thousands of feet for the work on the lumber. He was allowed to testify to a measurement of the bark and a survey of the lumber made by himself. The defendant contends that the quantities should have been proved by a sworn surveyor, or by the certificate of a sworn surveyor. That cannot be. The statute which requires sworn officers to make surveys and measurements, distinctly and in terms relates to sales only. Work upon lumber is a very different thing from a sale of lumber. The construction which the defendant invokes would be impracticable in its operation.

Exceptions overruled.

Walton, Virgin, Emery, Foster and Haskell, JJ., concurred.  