41 Minn. 548 | Minn. | 1889
The cause of action alleged in the complaint iS' the unlawful conversion by defendant, in August, 1888, of a quantity of saw-logs, the property of plaintiffs, and which, by way of descrip
As it was conceded that defendant bought the logs of O’Brien in good faith, the only question left, bearing upon the proper measure of damages, was whether O’Brien was a wilful trespasser. If he was,
Upon the trial defendant offered evidence to show that O’Brien was not a wilful trespasser. Some of these offers were clearly objectionable, because including other matters that were in competent for any purpose under the pleadings. Other offers, however, were not subject to this objection; as, for example, that O’Brien entered the land and cut the logs under the authority of Bice, who assumed to act as plaintiffs’ agent, and entertaining the belief, and having reasonable grounds for the belief, that Bice in fact had such authority. This evidence was all excluded. It does not appear on what ground it was excluded, but we infer that it was either that the answer admitted that O’Brien was a wilful trespasser, or that it was not pleaded that he was not. The answer is loosely drawn, and rather calculated to mislead, but we find nothing in it that could fairly be construed as an admission that O’Brien’s act was a wilful trespass. If not, we do not think it was necessary to plead that he acted in good faith. .This was a matter that went merely to the measure of damages. It was not defensive matter, but solely in mitigation. The general rule of pleading is that matter in mitigation of damages, at least when it could not be used as a bar of plaintiff’s cause of action, need not be pleaded. Indeed, in actions like the present, the complaint need not, and usually does not, (as it did not in this case,) tender any issue on any such question. Of course, if it appeared that the act of cutting was a trespass, the presumption, in the absence of any contrary showing, would be that it was wilful, and the burden would be on the trespasser to show that it was not. But this is wholly a matter of proof, and not of pleading. For the error in excluding this evidence a new trial must be granted; but.
. The letter received by plaintiffs purporting to have been written for defendant, and sent in reply to a letter previously sent by plaintiffs to defendant, was properly received in evidence. The question is fully covered by the case of Melby v. Osborne, 33 Minn. 492, (24 N. W. Rep. 253.)
We also think that the witness Dozy showed himself competent to testify as to the market value of saw-logs at Stillwater, and that his testimony on that question was properly admitted. The contention of defendant seems to be that, even in the case of a commodity which is a common subject of purchase and sale in the market, a witness can only testify as to market value from actual personal knowledge of sales which he himself made or saw made. This is not correct. Yalue in a business sense consists largely of the opinions of persons familiar with the market, and these opinions are largely made up of what is said and reported by others. Hence, if a person shows that his business is such that, by commercial reports or other means of like nature, he is familiar with the current market prices of an article, he is competent to testify on the subject, although he may not have actual personal knowledge of any particular sales. Brackett v. Edgerton, 14 Minn. 134, (174;) Whart. Ev. §§ 255, 449.
It appeared from the evidence that O’Brien contracted for the sale of these logs to be delivered to defendant in the boom at Stillwater, and that there was where they were in fact delivered pursuant to this contract. It also appeared, however, that at the time of making this contract the logs were “on the bank,” up in Pine county. On this state of facts, assuming that O’Brien was a wilful trespasser, the court below was right in holding that the measure of damages was the value of the logs in the boom at Stillwater, and not on the bank up in Pine county. Under the contract the place of delivery was the place where the sale and purchase were completed.
Order reversed.