The plaintiff and defendant were lumbermen; the former engaged in manufacturing, and the latter in furnishing logs to be manufactured into lumber, and then selling it. In January, 1857, the parties entered into a contract in writing, the terms of which were, that the plaintiff was to saw all the logs into lumber for defendant, that the latter should draw to his mill for one year to come; to saw the same into such lumber as the defendant should from time to time order and direct; and, quoting the language of the writing, “ to saw it (the lumber) in a good, workmanlike manner, and to take pains and saw all the clear stuff, select box, that can be got out of the logs, and to saw all the bark from the edge board, and what is sawed into inch is to be sawed plump inch, and if said party of the first part (the plaintiff) shall spoil any lumber, he is to take it, and pay the party of *320the second part (the defendant) what he shall get for the remainder, deducting the drawing per thousand feet therefrom.” The price for sawing was to be two dollars and fifty cents per thousand feet, to be paid in the way and at the times specified in the writing.
The plaintiff sawed, under the contract, all the logs furnished by the defendant, into lumber, and the defendant accepted the lumber, drew it away, and sold it. ■ •
On the trial the defendant offered to show, “ that the lumber was not sawed in a good and workmanlike, manner;” which proof was rejected by the referee, and this ruling presents the only question of importance in the case. I think the evidence was rightly excluded.
The sawing was done under and in pursuance of a contract between the parties. That contract must control as to how the lumber was to be sawed; and its language is to be interpreted in the sense in which it was used and understood by the parties', at the time it was made. “ I agree,” is its language, “ to saw it in a good and workmanlike manner, and to take pains, and saw all the clear stuff, select box, that can be got out of the logs, and to saw all the bark from the edge boards, and what is to be sawed into inch is to be sawed plump inch, and if said party of the first part shall spoil any lumber he is to take it, and pay the party of the second part what he shall get for the remainder, deducting the drawing per thousand feet therefrom.” There seems nothing here equivocal or ambiguous. The words “in a good and workmanlike manner,” evidently, I think, refer to the manner of sawing, that is, he (the plaintiff,) shall “ take pains and saw all the clear stuff, select box, that can be got out of the logs, “ saw all the bark from the edge boards,” and “ what he saws into inch, saw it plump inch,” in a good and workmanlike manner. From the language used by the parties, it was understood by them that if the logs were sawed, as .specified, viz.: “ all clear stuff, select box, - that could be got out of the logs,” “ all the bark sawed from the edge boards,” and “ all inch boards sawed plump inch,” they were sawed in a good and workmanlike manner.
*321The contract, then, specifies how and in what manner the' lumber shall be sawed, and provides a mode of settling the damages, if any, arising from bad sawing. “ If the plaintiff shall ‘spoil’ any lumber, he has to take it and pay the defendant what he shall get for the remainder, deducting the drawing per thousand feet therefrom.” This means, simply, that, if the lumber shall not be sawed in the manner provided in the contract, or, if any of it shall be damaged by sawing, so as to depreciate its value or injure the sale of the different qualities designated by the contract, that then the defendant is not to accept it, and the plaintiff is to take what is so injured and pay for it; or, in other words, if the plaintiff shall saw any of the logs into lumber, so as to reduce the lumber from a higher to a lower grade, thereby lessening its value, such lumber he shall take and pay for; and, if he shall saw any of the logs that would make clear stuff lumber into any other quality than select box, that he should take and pay for; and such boards as the bark was not sawed from the edges, and such lumber that was to have been sawed plump inch, and was sawed less, he was to take and pay for. The parties were lumbermen, and it was plainly in this sense that they understood and used the term, spoiled.
The parties, then, having, by the contract, fixed the mode of settling the damages, if any, arising from bad sawing, they were bound by it. The defendant could not accept, remove and dispose of the lumber, and afterward insist that the sawing was' not done according to contract, and claim damages on that ground. Ilis right to damages on that ground did not survive the acceptance of the lumber by him. By the provisions of the contract, the plaintiff was to take and pay for the lumber' “ spoiled,” and all not sawed according to the contract was within that description. It was his privilege, as well as his duty, to do so, and it was for his protection and benefit, as well as the protection and benefit of the defendant. If the defendant claimed that the sawing was not according to the contract, he should have left that part of the lumber not so sawed and called upon the plaintiff to keep it and pay for it; and, had the plaintiff refused to take *322it, then he could have set off his damages in an action by the plaintiff to recover his pay for the sawing. But, having accepted and disposed of all the lumber sawed (not insisting that the plaintiff should take and pay for any part of the same, as being badly sawed) it was an admission on his part that it was sawed according to contract, in a good and workmanlike manner, and that none of it was spoiled in sawing.
■ I am of the opinion, therefore, that the ruling of the referee was not erroneous. The defendant was estopped from showing that he sustained damages after having accepted the lumber and disposed of it. It is argued that if the lumber was not sawed according to the contract, to the defendant’s damage, he should have a remedy somehow. Undoubtedly, and a complete one was, in terms, provided. The plaintiff was to keep all the lumber not sawed, as the contract provided, that is spoiled, and pay for it at the prices obtained by the defendant at the place of sale for that sawed according to its provisions, deducting the expenses of drawing. But the defendant could not accept, remove and dispose of the lumber as properly sawed under the contract, and when sued for the price of sawing, insist that it was not done according to the contract. The parties having, by agreement, fixed a mode for settling the damage from bad sawing, cannot resort to any other method.
I think the judgment should be affirmed.
Judgment reversed.