George W. Crouch, Respondent, v. Willard Parker, Appellant

George W. Crouch, Respondent, v. Willard Parker, Appellant. (Argued January 30,1874; decided February 10, 1874.) The minutes of a former trial kept by an attorney, since deceased, are not competent evidence, although accompanied by proof that such attorney kept minutes during the whole trial; and that the minutes offered, according to the recollection of a witness present, appear to be of the entire trial. This was an action upon a clause in a lease providing for its termination. Defendant leased to plaintiff a saw-mill for the term of three years, subject to the contingency of a sale of the property, in which case the parties agreed as follows: “ It is hereby agreed that the party of the first part, named within (defendant), may, upon the sale of the property, terminate this lease by notice thereof to the party of the second part; but the party of the second part (plaintiff) shall have two months notice to “ saw out ” of water term ; and then, if any logs remain over, he shall either have the privilege to continue in possession (at option of the party of the first part), at the same rate rent, till logs on hand are sawed, or shall be allowed the extra cost of teaming said logs to another mill, and the extra expense incurred of sawing said logs at another mill; but the extra expense of removing and sawing said logs shall, in no case, exceed eight hundred dollars ($800).” Defendant sold the premises and gave the required notice. The evidence showed that the mill-yard could not contain logs more than enough to supply the mill for one or two weeks. Before notice of sale plaintiff had purchased, in the usual course of business, a large quantity of logs to be sawed at the mill, which were in course of transportation, or got out ready therefor, but which had not been sent on for want of storage room. Plaintiff ran the mill steadily, night and day, after notice. He spent a portion of the time, however, in sawing logs bought and delivered at the mill after the purchase. At the expiration of the two months he had on hand some 160,000 feet of logs purchased before notice, the extra cost of removing and sawing which, at another mill, plaintiff sought to recover. Held, that the words “logs on hand” meant those bought and provided in the regular course of business; not simply those in the mill-yard, that plaintiff was bound to use due diligence in “ sawing out,” and the consequence of neglect or use of the mill for other. purposes was that, if any logs remained over, which, with due diligence, could have been sawed, for the extra expense of sawing those at another mill he could not be allowed,1 but he was not precluded from recovering the extra expense upon those which necessarily would have remained over; that it was not a condition precedent that the full force of the mill should be applied to “ saw out ” the logs on hand. Also, held, that the fact that plaintiff had agreed with another to divide the profits, did not affect defendant’s liability; that if plaintiff had a partner who was a necessary party, the objection not having been taken by answer, was not available. The minutes of a former trial kept by an attorney were offered in evidence by defendant. Proof was given that he kept the minutes during the whole trial; and a witness who was present at the former trial testified that, according to his recollection, they appeared to be minutes of the whole trial. The minutes were excluded. Held, no error. George F. Danforth for the appellant. W. F. Cogswell for the respondent. [MAJORITY — Rapallo, J.,] Rapallo, J., reads for affirmance. All concur. Judgment affirmed.