majority">Dickinson, J.

This is an action to recover the purchase price of a quantity of saw logs sold by the plaintiff to the defendants. The controversy is as to the quantity of the logs sold and delivered, and whether the quantity, as claimed by the plaintiff, has been deter*179mined in the manner contemplated by the contract of sale. The contract was in writing. The defendants were to pay a stated price per 1,000 feet. The contract provided that the logs were “to be cut, banked, and scaled during the present winter by said Douglas (plaintiff) on the Little Prairie river, in Carlton county, Minnesota. * * * Said scaling is to be done by the. surveyor general when said logs are banked, and his scaling is to be taken and accepted by said parties as the true and final measurement of said logs.” The plaintiff was to drive the logs down the streams, and deliver them within the limits of the Mississippi & Rum River Boom Company’s booms at Minneapolis. The defendants received the logs so driven down by the plaintiff, and sawed them into lumber.

To show an official scaling of the logs, the plaintiff presented in evidence an official scale bill from the surveyor general’s office, referring to the logs as having been “scaled by Deputy Peter Lavalle,” at Little Prairie river, from which it appeared that there were 6,824 logs, containing 1,857,950 feet. There was the further item, designated in the scale bill as “averaged,” of 2,277 logs, set down as containing 453,110 feet. The plaintiff seeks to recover for the whole amount thus stated, — 1,811,060 feet. The defendants claim that the logs did not exceed in amount 1,502,720 feet, and that they were not concluded by the official scale bill as to the logs there appearing to have been “averaged.”

There was testimony on the part of the plaintiff corroborating what appears, or may be inferred, from the scale bill, that in fact the surveyor only scaled the 6,824 logs; that whatever other logs may have been there they were so buried under the ice, or perhaps under the other logs, that he could not scale them, and that the 2,277 logs set down in the bill as “averaged” were not seen by the surveyor, and of course could not have been measured or intelligently estimated by him. The plaintiff offered no evidence excusing himself from fault in having the logs banked in such manner that about one third of them, according to his claim as to quantity, could not be scaled.

Under the circumstances of the case the court was right in refusing to allow the plaintiff to show a custom of the surveyor general, which also lumber men have accepted and acted upon, to determine by counting and averaging the quantity of logs so covered up that *180they could not he scaled. We do not mean to say that estimates may not be made under some circumstances where complete measurements are impracticable. We are speaking with reference to this case. The contract obligation of the plaintiff to cut and bank the logs contemplated, as a purpose in view, the scaling of the logs on the bank by the surveyor general as the means for determining conclusively the quantity for which the defendants were to'pay. It was therefore incumbent on the plaintiff to so bank the logs, so far as that could reasonably be done, that they might be scaled. The statute with reference to the scaling of logs by the proper officer contemplates actual inspection and measurement by him, and mere estimates from uncertain data or information are not authorized, unless, at least, there is some necessity for it. The plaintiff had no right, under the terms of this contract, to unnecessarily render it impossible for the officer, whose scaling was to be final between them, to measure, or even to intelligently estimate, a large proportion of the logs. Upon the case as presented the scale bill was not evidence of the quantity of logs “averaged.” See Pratt v. Ducey, 38 Minn. 517, (38 N. W. Rep. 611.) Proof of a custom in general to estimate where measurement is impracticable would not have made a case for the plaintiff under the circumstances stated.

But in another particular we think there was error. The defendants stood in a position which may well have been regarded as rendering them responsible for the amount of logs actually banked by the plaintiff, and all of which, as the evidence tended, to show, were driven down to Minneapolis, and delivered to them as provided by the contract. They may be supposed to have known that the determination by the surveyor general as to the logs banked was in part “averaged,” and there is evidence that they received and sawed the logs, making no objection until long afterwards. It might well have been found that they waived their right to insist upon a scaling on the bank. If so, the plaintiff may still hold them to liability for the actual quantity of logs sold and delivered to them. We do not see that the principle of estoppel is applicable to preclude them from disputing the sufficiency of the scaling evidenced by the “averaged” scale bill. But the plaintiff offered to show the actual number and quantity of the logs under the ice, and not scaled by the surveyor general, and that they were driven down with the rest. *181We think that the plaintiff should have been allowed to prove, as he attempted to do, the actual amount of the logs. For the excluding of this evidence the order refusing a new trial must be

Eeversed.

Vanderburgh, J., was absent on account of sickness.

(Opinion published 54 N. W. Rep. 1053.)

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