Assumpsit to recover compensation for hauling and driving logs.' The jury returned a verdict for the plaintiffs for $1140.97. The defendants claim a new trial, first, for misdirection of the presiding judge, secondly, upon the ground that the verdict is against evidence, and, thirdly, for newly discovered evidence. The misdirection complained of was a statement of the familiar and well settled rule of law that, when the parties have agreed upon a surveyor to scale logs, they will, in the absence of fraud or mathematical mistake, be bound by his scale. The ruling was correct. The court is of opinion that the verdict is not against evidence; certainly not so clearly against evidence as to justify setting it aside. The newly discovered evidence is the statement of a teamster that he counted the logs daily, and that the whole number was 7206. The scaler made them 7291 — eighty-five logs more than the teamster. No reason is perceived why this evidence, by the use of due diligence, might not have been discovered before the trial as well as after.
Exceptions and motions oveiTuled.
Judgment on the verdict.
AppletoN, C. J., Barrows, DaNforth, Peters and Libbey, JJ., concurred.