Christie v. Keator

| Wis. | Jun 23, 1880

Taylok, J.

The errors alleged by the defendant and- appellant are, that the first, fourth and sixth findings of fact are not supported by the evidence, and. that the court erred in admitting a scale bill offered in evidence by the plaintiff. As to the last alleged error, we do not see how it can prejudice the defendant. The bill was made by a person who was employed by the defendant, and this scale corresponds with the exact amount admitted in the defendant’s answer as delivered by the plaintiff in Bock creek. It is, however, insisted by the learned counsel for the defendant, that it should not have been admitted, as it was not properly certified; and that, as the bill showed the logs were marked plain K on the sides and ends, it prejudiced the defendant in that respect, as it was a litigated • question whether the logs were marked plain K or K notch. But the record also shows that the man who made the scale was a witness in the case, and swore to the scale being a correct one, and that plain K was the only mark he discovered on the logs when scaled. Under these circumstances we do not think the defendant could have been prejudiced by the evidence; and, as identified and sworn to by the man who made it, we think the sale bill was competent evidence for all purposes.

We think the findings are sustained by the evidence; at all events, they are not against the clear preponderance of the evidence. The main fact in controversy was, whether the plaintiff was to deliver the logs in the Black river or in Rock creek. Plaintiff insisted, and swore upon the trial, that he was to have six dollars per thousand for delivering the logs in Rock creek, and that he was to have fifty cents more per thousand if he drove them into the river. The defendant’s evidence was that he was to drive them into the main river for six dollars per thousand. The referee found that the plaintiff delivered the logs to the defendant in Rock creek, but that he bound himself to run them into the main river for the defendant as a part of his contract, and that he did run them as agreed; holding also that the plaintiff would only be liable in damages to the defendant for negligence in running them, and that in the absence of negligence on his part the loss occurring in the running would be the loss of the defendant.

In this view of the case the finding is fully sustained by the evidence. Theré is, in fact, no evidence establishing any negligence on the part of the plaintiff in running the logs. The logs were scaled in Rock creek, at the request of the defendant, and the evidence also shows that as late as April, 1877, nearly two years after the logs were delivered to the defendant, he made out an account of the transaction, in which he credited the plaintiff with 'the whole quantity of logs delivered to him, as found by the referee, in Rock creek, viz., 1,716,098 feet, and stated the amount due the plaintiff for the same at the sum of $10,296.53, making no deduction for any logs not driven from the creek into the main river. This statement, made by the defendant himself, was very strong evidence that the delivery of the logs, so as to pass the title to the defendant, was to be in Rock creek, and not in the main river, as now claimed; and that the running of the logs into the main river was to be done by the plaintiff for the defendant, and not on his own account in order to make a delivery of the same to the defendant. In this account, so stated by the defendant, he only credits himself with the sum of $9,144.85, after deducting one item of $400 which he admitted on the trial should not have been charged, as it was a payment in part for forty acres of land, and giving a credit to the plaintiff of $100 more, the balance due him for said land.

The amount found due to the plaintiff by the 'referee is but $126.70 more than that admitted to be due by the account so made out by the defendant, as corrected by his own evidence on the trial. Ninety-six dollars of this discrepancy is accounted for in the seventh finding of fact, which rejects two items amounting to that sum, and which finding is not even excepted to by the defendant. The difference between the amount found due the plaintiff by the referee, and the amount as stated by the defendant himself, rejecting the $96 properly disallowed by the referee, is only $30. How this difference is accounted for is not very clear, from the fact that the items of account, as stated by the defendant, do not appear in the bill of exceptions. The bill states that the memorandum or statement made by the defendant was introduced in evidence, and 'marked Exhibit I; but, as no such exhibit appears in the bill, we must presume it was properly accounted for until the contrary is shown.

The evidence, we think, fully sustains the sixth finding, that the plaintiff was the sole owner of the timber and trees out of which the logs were cut; that no partnership existed between the plaintiff and defendant as to such timber or trees; and that the plaintiff did not agree to deduct from the price of the logs, at six dollars per thousand, the sum of seventy-five cents per thousand — the alleged value of the defendant’s interest in the stumpage in the standing timber from which the logs were cut. The evidence to establish any right in the defendant to the standing timber is vague and uncertain, and is positively denied by the plaintiff, who shows that he purchased and paid for all the timber from which the logs were cut. No evidence was given tending to prove the set-off or counterclaim for two-thirds of the value of 200,000 feet of pine logs alleged to have been owned by the defendant, and sold and converted by the plaintiff.

"We find nothing in the case indicating that any injustice has been done to the defendant by the judgment of the court below.

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