We do not perceive any error in the ruling of the presiding justice. The furnishing contract of September 28, was expressly modified by the parties not only in relation to the persons who might furnish, but also as to the quantity of logs ; and judging from the language used the new stipulations seem to have been indorsed upon the original. Not so with the contract for driving. At any rate there is no pretence that any new written contract was ever executed by the parties; and the jury must have found that, although the subject matter was more or less discussed, still no agreement was made. There being no other, the original stipulation for the driving of “all the logs put into the Androscoggin river,” &c., must govern the parties.
The jury evidently scrutinized the plaintiff’s account; for instead of finding $3,480.43 due as stated in the account annexed to the writ, they returned a verdict for $1,937.07. This amount must include the balance which they found to be actually due with interest thereon from the date of the writ — about thirteen months.
The defendants challenged but few of the items in the account. ■Sixty-two dollars are charged for tools turned over and for repairing boats. Coombs as referee fixed the sum at $12. The plaintiff charged for driving 3,149,800 feet when by his own testimony the scale bills show 3,036,000 feet and 100,000 turned in at Sunday river. On the credit side the plaintiff had not entered his accommodation note of $1,500 paid by the defendants, nor the $30 for the use of the boats, as found by Coombs. Making these deductions, the balance would be $1,887.43, without interest.
The defendants lay the most stress upon the quantity of logs left on Rumford Falls. The testimony is very conflicting — vary*441ing from 60,000 estimated by Mr. Knapp, who is a disinterested witness and has resided at Eumford Falls for many years, to 2 to 3,000,000 as estimated by Mr. Wood agent of the defendants. All agree that whatever the quantity of logs found on the falls, but a small portion of them belonged to the defendants. If the jury believed the testimony of the plaintiff and his witnesses, the verdict is not at most $100 too large; and that sum the plaintiffs have offered to remit.
The drive, by the contract, and in fact, was under the control of the defendants. The jury have virtually found the logs were well and seasonably driven, and we do not consider it our duty to disturb the verdict provided the plaintiffs remit $100.
Motion and exceptions overruled.
Appleton, C. J., Walton, Dickerson, Barrows and Peters, JJ., concurred.