JANUARY TERM, MANISTEE NAVIGATION CO. v. LOUIS SANDS SALT & LUMBER CO. 1. LOGS AND LOGGING-CONTRACTS-ADVANCES-CONSTRUCTION— PAYMENT. Under the terms of a contract to remove sunken logs from a river and its tributaries, upon terms stated, including an advance of 50% of the agreed price each month on the basis of logs raised and skidded during the preceding month; "this amount to be considered as an advance under this contract, and not as a payment on any particular lot of logs," plaintiff, the contractor, was entitled to have advances made treated as for the contractor's benefit, and such advances applied to and protected logs secured and skidded, the defendant being entitled to credit therefor in proportion to the number of thousand feet in the logs delivered; defendant could not maintain its claim that the advances should be treated as payments upon the first and subsequent lots of logs, as delivered. 2. SAME-CONSTRUCTION OF CONTRACTS. There was no ground for the contention that the parties had, by practical construction, interpreted the contract in a different manner, where a payment had been made thereon, both parties expressly reserving the right to their several interpretations of its provisions without any prejudice, and leaving the dispute open to future determination. 8. SAME-PARTIES-JOINT CONTRACT. Where the contract was with several firms or persons, and was joint in form, but contemplated a delivery to each logowner of his own logs, as identified by their respective marks, and where the parties treated the agreement as a several contract, and each logowner advanced his individual proportion of the contract price as the timber was scaled, an action was prop*Continued from Vol. 173. erly brought against one defendant for its share of the amount due and breach of the terms of the contract. 4. SAME. Plaintiff's first count was in assumpsit, and the second claimed the right to recover the difference between the amount due plaintiff under the scale required by contract and the amount as determined by defendant; the third count being for logs delivered but not accounted for, and the fourth being assumpsit. The fifth count was for breach of a supplemental contract between the same parties, providing for a different method of estimating by scaling lumber actually manufactured by the defendant, who, as plaintiff claimed, employed wasteful methods of sawing lumber, so that the tally was less than it should have amounted to if the logs had been economically sawed. Held, that the counts sounded in assumpsit and not in tort, and that there was no misjoinder. 5. SAME-MEASUREMENTS-SCALE. And, although the parties, by the terms of the agreement, appointed scalers, whose determination was to be binding, evidence that a different scale than the one designated by the contract was employed by them, and that the kind of scale mentioned in the contract, i. e., a fair and equitable scale, was more liberal to plaintiff than a merchantable scale, which was the one adopted, raised a question of fact. 6. SAME EVIDENCE. Upon a record showing that defendant accounted for all logs delivered to it by witnesses having first-hand knowledge, and plaintiff could only produce estimates of doubtful value and of conjectural character to show the amount of logs claimed to be unaccounted for, but for one year a satisfactory estimate was made by plaintiff's agents who sorted the timber, there was testimony to go to the jury as to the amount of logs during the one year. 7. SAME. Held, also, as to the issues relating to damages for delays and sinking of logs, and for negligent sawing or wasteful methods in manufacturing lumber, plaintiff's evidence being conjectural and indefinite, defendant's positive and certain, the court should have instructed a verdict for defendant. 8. SAME-RECOUPMENT-INTERPRETATION OF CONTRACT. Under a contract requiring plaintiff to make at least one drive or delivery of all floatable logs each year after 1905, defend ant could recoup its damages for failure of plaintiff to make a drive one year. 9. SAME. Defendant was also entitled to recoup payments advanced for other than sunken or deadhead logs, as specified in the contract; and the determination of the scalers was not conclusive as to the timber which would constitute sunken or deadhead logs. 10. SAME. Also, the court erred in limiting defendant's right to recoup such damages by the qualification in his charge to the jury that if defendant caused the delay or failure to deliver by neglecting to advance moneys as required by the written agreement, the recoupment should be disallowed, where the evidence failed to sustain the contention that the alleged neglect was due to defendant's fault. Error to Manistee; Withey, J. Submitted April 2, 1912. (Docket No. 7.) Decided March 20, 1913. Assumpsit by the Manistee Navigation Company against the Louis Sands Salt & Lumber Company for breach of a contract. Judgment for plaintiff. Defendant brings error. Reversed. Glassmire & Ramsdell (Frank L. Fowler and Watts S. Humphrey, of counsel), for appellant. Thomas Smurthwaite (M. E. Neal, of counsel), for appellee. BIRD, J. When this case was first argued, the late Justice BLAIR sat throughout the argument and afterward prepared the opinion therein. Since that time a reargument has been had before the full bench. After a consideration of the questions involved, I find myself in accord with his opinion, and I therefore adopt it as containing my views of the case. It follows: "The plaintiff corporation was organized to improve the navigation of the Manistee river, which contained a great many sawlogs which had accumulated therein dur |