M. N. HARRISON vs. JOSIAH BRIDGES.
Where, from the loose manner in which the parties have dealt with each other, it is not possible to show the precise quantity of commodities delivered, or their quality, or value, it is proper to allow jurors to act on evidence which will enable them to approximate the truth of these facts.
AotioN of assumpsit, fried before SauNdees, J., at the Fall Term, 1856, of Nasb Superior Court.
Tbe plaintiff declared on a special 'agreement: that in consideration of bis services as clerk and general manager of defendant’s store, the latter was to distil and carry off, free of charge, all such turpentine as plaintiff might make and deliver during the year. The plaintiff produced evidence tending to show that he had cultivated a sufficient number of pine trees, with two good hands which he had employed, to make six hundred barrels of dip and sarape ¡ that he had also employed, at short intervals, four or five other hands. lie also offered evidence to show that he had a wagon and team engaged in hauling turpentine to the defendant’s distillery, but was unable to prove the precise number of barrels delivered. He further showed, by evidence, the number of gallons of spirits that could be distilled from 600 barrels of turpentine.
The defendant then produced in evidence a day-book kept by plaintiff, which was in hishand-writing, and in which were entries, for several months during the year, of the quantity of spirits distilled.
On this evidence the defendant’s counsel moved the Court to instruct the jury,
1st. That the plaintiff could not recover, because he had failed to show the precise quantity of turpentine delivered.
2nd. That, if entitled to recover, he could not recover for a larger quantity than was mentioned by the entries made by the plaintiff himself in the day-book.
. The Court instructed the jury that the plaintiff had to satisfy them as to the quantity of turpentine delivered, and this they were at liberty to collect from a fair construction of the *78facts and circumstances offered in evidence. That, as to the quantity of turpentine made and distilled, they were to examine for themselves the day-book, and decide whether that contained a full account of the whole quantity made, or otherwise. Defendant excepted.
Yerdict and judgment for plaintiff. Appeal.
Miller and Dortch, for plaintiff
Moore, for defendant.
Pearson, J.
There is no error. Prom the loose manner in which the parties dealt with each other, it was impossible to show the precise quantity of turpentine which the plaintiff had delivered, or the precise quantity of spirits for which the defendant was accountable. In such cases it is every day’s practice to allow jurors to apt upon evidence which will enable them to approximate the true quantity; positive precision being out of the question, unless there is an actual measurement.
Upon the same ground, in regard to quality and value, witnesses are allowed to give their opinion, and the result is left to the good sense of the jury.
In respect to the entries in the day-book, the statement of the case is so meagre, and so few details are set out, that we are not able to see the “ point.” The plaintiff acted as clerk in the defendant’s store, but it does not appear that it was his business to keep a full account of the quantity of spirits distilled. He, it seems, entered the quantity of spirits distilled for several months during the year. "Whether this included all the spirits distilled during “ the several months,” or was confined to the spirits produced from the turpentine which he had delivered during that time, is not stated; nor is it stated who made the entries during the rest of the year; consequently, we can see no error, and the judgment is affirmed.
Pet?. CueiaM. Judgment affirmed.