Chicago & Northwestern Railway Co. v. James

24 Wis. 388 | Wis. | 1869

Cole, J.

The bill of exceptions in this case does not profess to contain all the testimony introduced on the trial, nor all the instructions given the jury. It does contain, however, a number of instructions which were asked by the plaintiff and refused; Some of these instructions were clearly erroneous, because they required the court to pass upon the weight of evidence and questions of fact. Others again, however correct they may be as propositions of law, became immaterial in view of the. special verdict of the jury. This is emphatically the case with the ■ tenth, eleventh, fifteenth, sixteenth, seventeenth and eighteenth instructions.

These instructions, which chiefly relate to the principles of law that govern in actions of trover and the conversion of personal property, are'obviously inapplicable to this case, where the jury find that the defendants bought the logs in good faith, and were the owners of them at the time the suit was commenced. In reaching this result, it is very manifest that the jury must have been satisfied from the evidence that the local agents either had original authority from the company to sell the timber upon its lands, or were fairly warranted in presuming such authority from the repeated acts of the agents in selling the stumpage, which had been adopted and confirmed by the company. And that there was testimony from which the jury might reasonably presume that the company authorized these acts of' selling stumpage and timber by its agents, or afterward sanctioned and confirmed these sales, receiving the proceeds, the bill of exceptions, even as it now stands, abundantly shows. For it certainly contains testimony which tends to show that these railroad lands had been under the charge and supervision of Mr. Smith, the vice-president and one of the directors of tire company, for a number of years ; that Mr. Smith bad been in the habit of appointing local agents to look after them; that these local agents had sold stumpage and timber; that the company brought suit upon one of these contracts of sale, and obtained judgment, and the amount of the judgment after deducting the expenses was paid to the agent Foote; and that Foote was accustomed each year to make a full statement and report in writing to Mr. Smith, and pay any surplus moneys in his hands into the treasury of the company. From this testimony the jury might well have presumed that the authority which Mr. Smith, and the local agents appointed by him, exercised over these lands, was' fully known to the directors of the company, and that it was tacitly acquiesced in and sanctioned by them. If so, the company would be bound by these acts of its agents. It appears that the proceeds of the sales of stumpage and timber made by Smith and Foote have gone into the treasury of the company. This alone is strong evidence of the ratification of such sales made by the agents. Despatch Line of Packets v. Bellamy Man. Co., 12 N. H. 206-237, and cases there cited. The company ought not to be permitted to avail itself of the money arising from these sales, and at the same time repudiate the sales as unauthorized. It is true the sale of the timber in the present case was made by McG-illan, who has neglected or refused to account to the company for thé moneys which he has received. But the evidence shows that Foote and McGillan had the same power and authority in respect to these lands ; and if the company did not deny the agency of the former to sell the timber and bind it by such contracts, the authority of the latter to do the same things might well be inferred. • And the jury must have reached the conclusion upon the facts, that Mc-Gillah was authorized to make the sale of the timber to Weatherby; otherwise they could not have found that the defendants were the owners of the logs at the commencement of the suit. We do not deem it necessary to go through and notice in detail the instructions asked and refused on the part of the plaintiff. As already observed, many of them ask the court to charge in respect to matters of fact or the weight of evidence, while others became immaterial in view of the special verdict.

By the Court. —The judgment of the circuit court is affirmed.