Bourda v. Jones

110 Wis. 52 | Wis. | 1901

Maeshall, J.

It is insisted that there was no evidence showing that appellant was not the owner and entitled to recover the property he claimed; that his alleged cause of action was prima facie established, and that there was no competent evidence to the contrary. That contention is based on the idea that the list of property produced and received in evidence, said to be a correct inventory of the property in the hotel when appellant took possession in 1897, and the inventories of the property found in the hotel after appellant left it in 1898, were improperly received in evidence. In that, counsel for appellant is in error. The inventory of 1896 was fairly shown to have been accepted as the inventory required by the lease to be taken on or before May 12, 1897. It was sufficiently verified to be admissible as part of the evidence of A. "W. Jones, as was also the inventory taken by him in 1898, and the tabulation showing the excess of articles then in the hotel over what the lease required appellant to deliver to respondent. The same is true of the inventory made by Miss Jones. So the situation was that there was evidence on the side of respondent quite as satisfactory as on the side of appellant. Ye are unable to discover any basis for the claim confidently made by ■counsel for appellant that his case was clearly established and that the defense was wholly unsupported, except the ■assumption that the verified inventories and the tabulation ■of the result of comparing the inventory of the property respondent’s witnesses said appellant received and that of the property he returned, were improperly received in evidence. The several lists received in evidence as part of the testimony of respondent’s witnesses were quite as well verified ■as the list put in evidence by appellant to substantiate his claim. The lists on both sides were made and verified in substantially the same way and were received in evidence in connection with and as a part of evidence of witnesses who made them, under the same rule. They were not received as independent instruments of evidence. They were used for tbe purpose of aiding the witnesses who testified to-their correctness in giving evidence of facts within their knowledge, or that were within their knowledge when the-lists were prepared or the memoranda were made from which the lists were compiled. A witness, in testifying, may properly use a memorandum which he knew when made, or by subsequent verification thereof, to be correct, even though he does not possess present remembrance of the correctness-of the matters referred to therein, after seeing the paper and examining it, and even though the writing is not one that the witness made himself. In such a case, if the witness, after using the paper to refresh his memory, cannot-state the facts readily from personal recollection, but can state that he knows the paper was in accordance with the truth when it was made, it may be put in evidence as a part, of his testimony. Jones, Ev. §§ 877-886, inclusive. We see no reason why the referee was not warranted in receiving in evidence all the verified lists upon both sides and giving such weight thereto in connection with the other evidence as he believed the same were entitled to, and in finally concluding that the evidence produced by respondent, in respect to the amount of property plaintiff was entitled to, was in accordance with the truth, and in deciding accordingly.

It is said there was error in finding that there was an offer of judgment which was more favorable to appellant than the final decision, because the offer was not introduced in evidence. The learned counsel must have failed to read sec. 2789, Stats. 1898, under which the offer was made. That provides that the offer, if not accepted, cannot be put in evidence or considered on the trial, but that notice shall be taken of it in determining whether the party to whom judgment is offered, in case he recovers, is entitled to full costs or only costs up to the date of the offer. There can be no-controversy but that tbe offer of judgment was actually served. It has an admission of service indorsed upon it by appellant’s counsel. The fact that the case proceeded to trial after the offer was made is ample evidence that it was refused. The paper was a proper instrument to be in the files of the case, and. wfien it was called to the attention of the referee it was his duty to recognize the effect thereof under sec. 2789, as he did.

Complaint is made because the referee did not allow appellant at least all the property specified m the offer of judgment. At this point counsel seems to recognize the fact that the existence of the offer of judgment could not properly be entirely overlooked. The answer to his proposition, however, that the referee should have considered it in determining the facts, is that the statute expressly prohibits such consideration. When an offer of judgment is made under sec. 2789, and is refused, it drops entirely out of the case till the final conclusion is reached on the facts, and then it must necessarily be considered m determining the question of costs.

It is contended that the evidence of value on the part of plaintiff was clear, satisfactory, and undisputed, and that there was no evidence whatever to warrant the court m finding the value at $50 or any less than the amount indicated by the testimony of plaintiff. We are unable to find, the clear and satisfactory evidence spoken of. Appellant testified that the property, though it had been m use m a hotel from one to five years, was worth as much as when new, and his values were put upon that basis. The evidence was clear, to be sure, but clearly outside the realms of all reasonable probabilities. It has often been said that courts and juries are not obliged to find that a fact exists, and cannot properly do so, merely because there is evidence to that ef feet from the mouth of a witness or any number of witnesses. A sworn statement, which is obviously false when viewed in the light of reason and. common sense and facts within common knowledge, cannot be received in court as true because some witness wilfully or ignorantly or recklessly so testifies. Badger v. Janesville C. Mills, 95 Wis. 599; Roth v. S. E. Barrett Mfg. Co. 96 Wis. 615; Flaherty v. Harrison, 98 Wis. 559; Wunderlich v. Palatine F. Ins. Co. 104 Wis. 382. It is not infrequently supposed that a sworn statement is necessarily proof, and that, if uncontradicted, it establishes the tact involved. Such is by no means the law. Testimony, regardless of the amount of it, which is contrary to all reasonable probabilities or conceded facts — testimony which no sensible man can believe — goes for nothing; while the evidence of a single witness to a fact, there being nothing to throw discredit thereon, cannot be disregarded. If it is the only evidence m respect to the fact involved, it is ordinarily deemed sufficient to establish such fact. Engmann v. Estate of Immel, 59 Wis. 249. Where the value in controversy relates to an article, the value of which is within common knowledge, the fact may be found by court or jury without direct testimony thereto, the article being sufficiently described by evidence to enable one to apply to it common knowledge of value. At the same time, evidence of witnesses, though uncontradicted, placing the value of an article beyond all reason, should be entirely ignored. Hossler v. Trump, 62 Ohio St. 139. The court in that case, to illustrate, suggested that evidence that labor, ordinarily worth $3 per day as a matter of common knowledge, is worth $100 per day, is not entitled to any consideration. If there is anything that is within common knowledge, it is that the value of household furniture and utensils that have been in use for a number of years, however well the same may have been cared for, is largely below the value thereof when new. The testimony of appellant that his property was worth as much as when new, did not prove or tend to prove the true value. So the referee, without any accurate description of the property or its condition, was left to guess at the value thereof. The burden of proof was on plaintiff. His case was submitted on the issue of value for a judicial guess, and it is considered that he cannot complain of the result. This court is certainly in no better position to know the truth than the referee was. As we view it, there was practically a failure of proof on the' subject of value.

A further complaint is made because the court assessed appellant’s damages, for the wrongful detention of the property, at $1, in the face of his - evidence that such damages amounted to $200. On this point we might repeat what has been said in regard to determining a fact in controversy where there is no credible evidence in regard to it. According to appellant’s evidence, viewing it with reference to the property he recovered, his damages for the wrongful detention thereof were about four times what the court found its value to be, and well up to the value that by any possibility could have been established by proof; yet he 'said that if he recovered the • property it would be worth substantially as much as when new.

No special damages were claimed in the complaint or established by the evidence, so the"proper rule required the referee to allow, as damages, interest upon the value of the property while the wrongful detention thereof continued. Bonesteel v. Orvis, 22 Wis. 522; Bigelow v. Doolittle, 36 Wis. 115; Wells, Replevin, § 537. That was overlooked by the referee and by the trial court, but the loss to appellant thereby is too trifling to justify regarding the error as substantially prejudicial to him.

Some other points are referred to by counsel, but we have noticed all that seem to be regarded as of special significance. We are unable to discover any reversible error in the record.

By the Oourt.— Judgment is affirmed.