Fornette v. Carmichael

41 Wis. 200 | Wis. | 1876

LyoN, J.

The defendant objected on the trial to the admission of evidence of the bank scaling of the logs, on the ground that the contract contemplates a scaling to be made at the boom after the same was entered into, and not the bank scaling.

The contract, standing alone, seems to be ambiguous upon tbe question whether the quantity of the logs was to be ascertained by the bank scaling or a boom scaling; but it is a latent ambiguity, which may be explained by testimony ali/unde the writing itself. Hence, the court could not properly hold, as matter of law, that the contract referred to a boom scaling, and it was not error to admit evidence of the bank scaling;.

When it is considered that the defendant purchased the logs by a scale; that the quantity so purchased was estimated at nearly the quantity shown by the bank scaling; that the defendant took no steps to have another scaling of the logs after the purchase; and that he offered no evidence tending to show that the contract contemplated any other scaling — the mind is impelled to the conclusion that the plaintiffs intended to sell, and the defendant to purchase, by the bank scaling. The circuit court so held, and we think correctly.

The testimony offered by the defendant of estimates of the quantity of logs put upon the bank, or into the stream, by the plaintiffs, was properly rejected. The defendant purchksed by the scale, and such scale was made under the directions of the proper lumber inspector, who examined and approved the work of the scaler when in1 progress, and the result was duly entered in the scale book. It would be most dangerous to permit the scaling to be impeached by the mere estimates of witnesses of the number and quantity of the logs, without either count or measurement. Had the testimony been received, and were the estimates less than the quantity shown by the scale book, we should still be of the opinion that the latter is the better, and indeed, under the circumstances of this case, the controlling evidence of the quantity of logs.

The testimony offered to prove that the scale book showed a less quantity of logs scaled than was testified to by plaintiffs’ witnesses, was also properly rejected, for the very satisfactory reason that the defendant had in his possession the scale book, which was the best evidence of the fact. It would be a palpable violation of an elementary rule of evidence, to permit a party to give parol evidence of the contents of a written instrument when the instrument itself is in his own possession.

These views dispose of the alleged errors adversely to the defendant, and result in the affirmance of the judgment of the circuit court.

By the Cowrt. — Judgment affirmed.