In Error to the Circuit Court of the United States for the Northern Division of the District of Washington.

This was an action by John S. Day and Michael Day against the Sunset Telephone & Telegraph Company to recover the value of certain poles. The plaintiffs recovered judgment in the circuit court. Defendant brings error.

The defendants in error, plaintiffs in the court below, sued plaintiff in error, defendant in the court below, to recover the sum of $5,717. For convenience we shall designate the parties, as they appear in the controversy in the court below, as plaintiffs and defendant. The cause of action, as stated in the complaint, is that defendant employed plaintiffs to furnish it, at San Pedro, Cal.. 2,005 telephone poles at $3.20 each, and 226 poles at $6 each, to be paid for on delivery at the who rf at San Pedro, and that plaintiffs duly performed the contract; that the price of the poles amounted to §7,772, of which §2.800 lias been paid, leaving due $5,472. The second cause of action is that plaintiffs, in accordance with agreement, “shipped and freighted,” by tlie schooner Bangor, — the schooner which also carried the telephone poles,— 7,000 cross-arms for telephone poles, at the agreed price of 3½ cents for each cross-arm, malting the sum of §245, which has not been paid.

The answer of defendant alleges that the contract with plaintiffs was in writing, and attached a copy to the answer, which is as follows:

“Agreement, entered into this bill day of April, 1892, by and between Day Brothers, of Seattle, state of Washington, and Sunset Telephone and Telegraph Company, of San Francisco, a corporation existing under the laws of the state of California. Said Day Brothers hereby covenant and agree 1o furnish and deliver on wharf at San Pedro, California, and the sa.id Sunset Tehvphone and Telegraph Company hereby agree to take and pay for, the following described poles at (lie prices herein stipulated: Two thousand (2,000) round telephone poles, thirty (30) foot long and not less than seven (7) inches in diameter at the smallest .end. Price for the same to be throe dollars and twenty cents (§3.20) per pole. Total, $0,400.00. Five hundred (500) round toiexihone x>olos, forty feet long, and not less than eight (8) inches in diameter at the smallest end. Price for same to be six dollars (§6.00) per x>ole. Total, §3,000.00. All of above poles to lie. of good, sound, live cedar, to be insiiected and approved, prior to shipment, by an agent appointed by said Sunset Telephone and Telegraph Company before loading, and to be all delivered in good condition on said wharf, at San Pedro, Cal., by said Day Brothers, to be shipped within fifty (50) days after date. Each cargo to be paid as follows: Thirty (30) xmr cent, after inspection and loaded on vessel; forty-five (45) per cent, after delivery on wharf at San Pedro, Cal.; twenty-five (25) per cent, after completion of contract, — this per cent, to be retained in lieu of damages for uoncompletion of contract. In addition to the above, said Day Brothers agree to take, on same vessel with cargo of poles, live thousand (5,000) cross-arms, to lie landed on said wharf at San Pedro, Cal., with poles, at three and a half (8½) cents each. In witness whereof, the said parties have set their hands and seals this fifth day of April, 1892. Day Brothers. [Seal.]

“Accepted for Sunset Telephone Telegraph Oo>,

“By Jno. Lawrence, Geni. Supt.

“Witness: A. Clark.”

Defendant also admits the contract of affreightment of the cross-arms. As affirmative defense, it alleges: That, prior to the commencement of the action, it had fully piaid plaintiffs,• and, further, that plaintiffs did not perform their contract in this: that they did not furnish 500 poles 40 feet long, nor deliver said poles or the cross-arms at the wharf at San Tedro. That they did not ship the same within 50 days, and did not pay the freight or discharge the lien of the schooner Bangor for the carriage of said poles and cross-arms. That they only procured and shipped 2,000 pioles 30 feet long, and 276 poles 40 feet long, rexiresenting and pretending that they were the owners of said poles. That about 1,000 of said poles wore unlawfully cut and procured from the lands of the Puget Mill Company, a corporation, without its permission or authority, and mixed with the other poles shixiped so that their identity could not he established. That, upon the arrival of the schooner at San Pedro, the Puget Mill Company did separately demand from the master of said schooner, and from the managing owner thereof, the possession of said poles, making separate demands, as a matter of lireeaution, for 1,200 poles; also, for 100 poles; and the said poles being mixed and confused with other xioles constituting the cargo, so that the same could not be identified, or said demand complied with, the said company did likewise demand the whole of said cargo of poles. Bach and every of said demands was refused by said master and by said owner. That there was due for freight $4,000, for which the schooner was entitled to a lien on the cargo, or so much thereof as was owned by plaintiffs. That there was no'market for said xioles and cross-arms at San Pedro, and defendant was, at said times, the only jmr-chaser, and required forthwith the amount of poles and cross-arms embraced in said cargo, and if the same or any portion thereof were taken or held by liroceedings at law to establish the title or right of the Puget Mill Company, or by proceedings in admiralty to establish the lien of the vessel for freight, the defendant would have been compelled to purchase the poles it required elsewhere, and the market for said poles would have been destroyed. That thereupon, and by reason of the aforesaid facts, and the emergency existing as aforesaid, the master and managing owner of said vessel did take charge of said cargo, and did sell the same to this defendant for the sum of $3,717, which is the amount which would have been due plaintiffs thereon under the contract (Exhibit A), had plaintiffs complied with the terms and conditions thereof, and paid the aforesaid sum of $4,000 freight thereon, and had plaintiffs likewise been the owners of the whole of said cargo. That the cargo ■was delivered to defendant in pursuance of said sale, and not otherwise, and in pursuance of said purchase it paid the said sum of $5,717 to the master and managing agent of said vessel. And defendant alleges, on information and belief, that the said master, upon proof and assurance of the title of the Puget Mill Company, paid it, out of the proceeds of said sale, $2,200, and the balance is retained to pay the freight on the cargo.

The case was tried by a jury, and the instructions of the court were as follows:

“This is a suit by the plaintiffs, the firm of Day Bros., to recover a balance claimed to be due for a cargo of telephone lióles, which were furnished under a contract with the defendant, and delivered at San Pedro, in California. It is conceded that-the contract on which the suit is founded was entered into; that the telephone poles were xirocured by the plaintiffs, and shipped to San Pedro, and the defendant has received them at San Pedro. A part of the purchase price agreed upon has.been paid to the plaintiffs, and, in addition to that, the defendant has paid or settled for the freight which the plaintiffs were required to pay to the vessel for transpiorting the icoles to San Pedro, leaving a balance on the contract price for the pioles yet unpaid. In addition to the amount claimed for the poles, the contract lirovided that the vessel, which the plaintiffs were to charter to carry the íxiles, would take some cross-arms for the.defendant, for which the defendant was to pay the lilaintiffs. This vessel did carry some cross-arms, and for the transportation or freight on the cross-arms there is due the plaintiffs, from the defendant, $245. They are entitled to a verdict for that amount, at least, in this case. Now, whether there is any balance due them for the telephone poles depends upon your determination of the question whether the plaintiffs were the owners of all of (lie timber which they iiut into that cargo. That is the question in this case for this jury to decide. The defendant has pleaded several defenses, but they are all either merged into this one, or abandoned on the trial. So that the question of title-ownership of the timbers — is the question to which the vase is narrowed down, and that is the question which is to be submitted to this jury. If the plaintiffs, without the consent of the owner of the land where the timber grew, went upon the land, and cut it, and undertook, under their contract, to furnish that timber to the defendant, and the owner consequently Juid a right to claim that timber, as against them, or as against their vendees, then it would bo the owner of the land that would have a legal claim against the defendant for the price or vaiue of the timber, and not the plaintiffs; and for the value of so much timber as was unlawfully taken — if any of it was unlawfully taken — by the plaintiffs from the premises of the Puget Mill Company the defendant would have a right to claim, as it does claim, that a deduction should be made. You have heard the evidence and the arguments of counsel. Upon a fair consideration of the whole case, you are to determine whether this evidence establishes that any number of these polos were cut on the lands belonging to the Puget Mill Company; and if you so find, you will endeavor, from the evidence, to fix the value of so much of the timber as was thus taken from the Puget Mill Company's land, and deduct it from the whole contract price; and if there is yet a balance, after making such deduction, if there is yet a balance due the plaintiffs, award them a verdict, for that balance. If there is nothing- over and above that deduction, and the credit that lias been paid, and the money that has been paid to the plaintiffs, still coming to the plaintiffs, you will not award the plaintiffs any inore than !p2-13. Now this claim that the timber was cut on the land of. the Puget Mill Company is an affirmative defense, set up by the defendant, and it is therefore incumbent upon the defendant to establish, by at; least a fair preponderance of the evidence, that the timber was cut on the land of the Puget -Mill Company, — some of the very timber that went into this very cargo. The defendant cannot, in this case, claim anything on account of timber cut at any other time, or any other timber, if any was ever cut by Day Bros., unless it was part of this same cargo. The defendant is not required to identify any particular sticks of timber of that cargo, but it is incumbent upon the defendant to prove that some of the timber that went into that cargo was timber taken from the Puget Mill Company’s land, and to fix, by the evidence, upon that timber, — that is, the timber taken from the Puget Mill Company’s land, and put into that cargo. If it should appear to you from the evidence that some timber was taken from the Puget Mill Company's land and included in this cargo, and the evidence is too indefinite to enable you to determine how much, or the value of it, you can only allow a nominal sum to bo deducted from the contract i>rice of the timber. You are exclusive judges on the question of the evidence involved in the ease, and it is your province to weigh the evidence, and determine its value, and pass upon the credibility of the witnesses, and determine, from a fair consideration of the evidence in the case, what the truth is.”