43 Wis. 414 | Wis. | 1877
I. The motion to suppress the depositions was-founded principally on the objection that it appeared that the-witnesses had been allowed to take and read the direct and cross interrogatories before- they were examined by the commissioners. The witness Becker says, in answer to cross interrogatories: “ I read the direct and cross interrogatories, here,.
II. Another error assigned is the refusal of the court to permit the witness Ewing to answer the questions calling for the declarations or statements of Seyfried, deceased, made at the time of the delivery of the lumber in controversy. The questions were first asked on the cross examination, but afterwards the witness was called on the part of the defendant, and the questions repeated, with the further offer to prove that Seyfried stated, at the time of the delivery of the lumber, that Mr. Wilcox claimed the title to it, and that he was satisfied the plaintiff had no title to it, and that he had paid Wilcox for it. It was insisted by the connsel for the defendant, that all that was said at the time of the sale and delivery of the lumber, was part of the res gestee, and was competent testimony. This position, we think, is correct. The action is to recover the value of a cargo of lumber alleged to have been sold and delivered by the plaintiff, through his agent, Ewing, to the deceased, Seyfried. The lumber was shipped from the plaintiff’s dock at Mnskegon, on a vessel, and transported to Milwaukee. Ewing was a lumber broker, living at Milwaukee and doing business for the plaintiff. He sold the lumber while on the vessel, to Seyfried, as the property of the plaintiff. Ewing ordered the captain to take the vessel to Seyfried’s dock, and deliver the lumber. The vessel was taken to Seyfried’s dock, and, as the lumber was about to be delivered, one Wilcox interfered and stopped the delivery. Ewing testified that he saw Wilcox, and then went to Seyfried’s yard, and told Seyfried that he must proceed with the unloading of the vessel, when Seyfried replied that he could not. And it was the declarations and statements made by Seyfried at this time which were offered in evidence and ruled out. It will be observed that
By the Court. — The judgment of the county court is reversed, and a new trial ordered.