The defendant made a written contract with the plaintiff to drive a quantity of logs down the Sebasticook river from Pittsfield to Clinton at an agreed' price for the driving, which amounted to $142 for the lot.
Before the drive was started the plaintiff sold the logs to one McNally of Clinton under a contract calling for a specified quantity, to be delivered at McNally’s boom, for $1443, and received payment therefor.
But McNally failed to receive the entire quantity purchased and paid for by him, and in an action against Parks for failure to deliver all óf the logs, McNally recovered judgment for $402 as damages for the' shortage.
Thereupon Parks brought the present action against the defendant Libby to recover, first, for his failure to perform the original contract to drive the logs in a proper manner; and second on Libby’s alleged agreement to assume and pay the amount which McNally might recover in the action against Parks.
The jury returned a special finding that the defendant Libby was not liable for any failure to perform his original contract to drive the logs in a suitable and workmanlike manner, and also rendered a general verdict for the defendant.
The case comes to this court on the plaintiff’s motion to set aside this verdict and spécial finding as against the evidence.
As stated in the opinion in Parks v. Libby, 90 Maine, p. 60, “the rule of damages in the two actions is not the same. The *137defendant may be liable for such damages as might arise from negligence, while the plaintiff in the other action against him was liable for damages arising for not delivering a certain quantity of logs according to an agreement of sale. .One stands in the position of a bailee and the other in that of a seller of logs.”
The plaintiff contends that all the damages suffered by McNally and himself were attributable directly to the failure of the defendant to perform his contract in driving the logs. He says there was unnecessary delay in starting the drive; that the rafts were of such excessive width as to be unmanageable; that the rafts were not manned with sufficient crew, nor the men equipped with suitable implements; and that by reason of these things and of a want of reasonable and ordinary foresight, skill and prudence, the defendant failed to drive the logs to the lower McNally boom, but became discouraged and left the greater part of them at a temporary boom three-fourths of a mile above the point agreed upon.
The defendant took issue upon each of these propositions set up by the plaintiff. He contended in the first place that there were not so many logs at the landing in Pittsfield as the plaintiff undertook to sell to McNally; that he discovered a shortage of eleven hard wood logs before he started the drive and that the same ratio of shortage in the other lumber, together with the small loss actually sustained in the drive which no ordinary care and skill could prevent, would fully account for all the logs which McNally purchased, but failed to receive. He admitted that the greater part of the logs were left by him at the temporary boom three-fourths of a mile above McNally’s lower boom, but claimed that this was done under an arrangement with McNally, whereby the logs were practically accepted at the upper boom. And McNally admits in his testimony that he agreed to employ men for the defendant, and have the logs driven to the lower boom under his own supervision and that this agreement was carried out by him.
A careful examination of all the evidence relating to the several issues raised in regard to the defendant’s manner of performing the original contract, induces the belief that the court might possibly have reached a different conclusion from that announced by *138the jury: but there was testimony in behalf of the defendant in support of all of his contentions, and if full credence were given to this evidence, it was sufficient to authorize the findings of the jury; and the courtis not prepared to say that the result necessarily indicated prejudice or misapprehension on the part of the jury or that a contrary result was the only reasonable one.
With respect to the plaintiff’s second contention, that the defendant recognized his liability in his negotiations for settlement of the McNally claim, and in consulting and advising with the present plaintiff at that trial, and that he finally assumed and agreed to pay any judgment McNally might recover, the testimony was also conflicting. It is not improbable that some of the jury may have been influenced in some degree by a consideration of the hardship upon the defendant in compelling him to .pay $700 damages on account of an undertaking for which he was to recover' in any event but $142, and from which in fact he realized no profit whatever; but upon this branch of the case, as upon the former, there was legitimate and material evidence, which if believed was sufficient to support the verdict. It was a simple issue of fact, which the jury were well qualified to determine. They saw the witnesses and heard their testimony and we do not feel justified in declaring the verdict to be so manifestly wrong as to demand the interposition of the court in setting it aside.
Motion overruled.