The opinion of the Court, Shepley, C. J., Wells, Rice and Hathaway, J. J., was drawn up by
Rice, J.The defendants purchased of the plaintiffs a quantity of pine mill logs, which were lying upon the bank of the east branch of the Penobscot river. The logs, before they were removed from the bank, measured, according to the scale bills introduced at the trial, five hundred and fifty-one thousand one hundred feet, board measure. On a resurvey, after they had been driven to Howard’s boom, the place of destination, there was a large deficiency in the amount of timber when compared with the original survey in the woods. The plaintiffs contend that this loss occurred from a want of proper care and diligence in driving the logs, and the acci*292dental breaking of the boom in which they were lodged after they had been driven, but before the second survey.
The question at issue between the parties is, which shall sustain this alleged loss. By the terms of the contract, a survey might be had below Howard’s boom if desired.
The Judge instructed the jury, that if the defendants had used such fidelity and care and diligence to drive the logs from the bank to the boom, as prudent men use, ordinarily, in their own affairs, and due diligence to preserve and secure the logs that passed through the boom, they would be liable for the logs that were scaled below the boom by Howard, at his scale; also for logs which passed below the boom scaled by other persons, and those not scaled by any one below the boom ; also for logs which failed to come to the boom on account of defendants’ negligence and want of ordinary care, and no others.
The plaintiffs’ counsel contended that the logs were delivered on the bank, before they were driven, and that the title thereby passed to the defendants, and that consequently they were at the risk of the defendants from and after that time.
The title to the logs is not now matter of controversy, nor can that question be of any importance only as it may be supposed to bear indirectly upon the question of loss. It is no uncommon thing for property to be sold and delivered, and the quantity be ascertained at a subsequent time and place. Such was the case in Macomber v. Parker, 13 Pick. 175, and Riddle v. Varnum, 20 Pick. 280. It was undoubtedly competent for the parties to transfer the logs at one place and to determine the quantity at another.
Every practical lumberman understands that there is a wide difference between selling logs at the woods scale, and selling at a resurvey after they have been driven to market. The price, at the latter scale is always much higher than at the former. This arises from the fact that there is always incident to driving more or less depreciation and loss.
The contract, as has been seen, provides for a resurvey below Howard’s boom if desired. The fact that such a survey *293was desired is fully established by the acts of the parties. What then was the intention of the parties ? Manifestly that the purchaser should have the benefit of a survey after the logs had been driven. ,
By undertaking to drive the logs, the defendants assumed to act with due care and diligence. To this obligation they were held by the instructions of the Judge, and they were also held accountable for all losses, except such as were incidental to driving with proper care, &c. We think if either party has occasion to complain of the rule prescribed by the Court, it is not the plaintiffs.
Exceptions overruled. —Judgment on verdict.