Jones v. De Muth

137 Wis. 120 | Wis. | 1908

Dodge, J.

The absence of exception to any except the finding of reasonable value renders findings conclusive as to all other facts to which they relate, and thus, it is established that the plaintiff sold and delivered and the defendant purchased this cream separator, that such sale was consummated on or about October 14th, and, as matter of course, the price was then fixed, not by express agreement of the parties, but by implication of law, at the reasonable value of the property. The only question, therefore, on this appeal is whether the finding that such value was then $100 is supported by any evidence, for there is none at all to the contrary.

The court seems to have found support for its conclusion in the fact, testified to orally, that plaintiff charged the separator upon his books of account at that sum. Eut the conditions under which books of account or entries therein are permitted to have evidentiary effect by statute (sec. 4186, Stats. 1898) were not all proved. There is entire absence of any evidence “that such entires are just, to the best of his [plaintiff’s] knowledge and belief.” Without such proof the ■entries in the books were inadmissible. Kelley v. Crawford, 112 Wis. 368, 371, 88 N. W. 296; Brown v. Warner, 116 Wis. 358, 93 N. W. 17.

But the trial court further found evidence of value in the acts of the parties, in that plaintiff on two occasions, about April 1 and June 1, 1906, sent to tbe defendant bills-for tbe separator specifying as a price $100, and that tbe defendant received tbem. Confessedly be made no response thereto. While of course tbe plaintiff could not by bis own act in writing or sending such bills create any evidence of the value of the separator or tbe price at which it was sold, vet it is quite uniformly held that, when a demand in tbe form of a bill or account is delivered to tbe debtor, bis conduct with reference thereto may be significant, and bis failure to object within a reasonable time be construed prima facie as an admission that such bill or account is correct; not at all conclusive either on the fact of admission or on tbe fact of correctness, but prima facie, subject to be overcome by other evidence. Assignees of Field v. Moulson, 2 Wash. C. C. 155; Wiggins v. Burkham, 10 Wall. 129 ; Freas v. Truitt, 2 Colo. 489; Fish P. & F. Co. v. Evans, 37 N. Y. Super. Ct. 482; Lockwood v. Thorne, 18 N. Y. 285 ; Shepherd v. Bank of Mo. 15 Mo. 143 ; Hayes v. Kelley, 116 Mass. 300; Hinton v. Coleman, 45 Wis. 165; Engfer v. Roemer, 71 Wis. 11, 36 N. W. 618; Rose v. Bradley, 91 Wis. 619, 623, 65 N. W. 509. True, in Hinton v. Ooleman this court held that presentation of a bill under tbe circumstances there existing constituted no evidence at all of tbe price of tbe article sold, but that was because tbe defendant immediately repudiated liability entirely, although without questioning tbe correctness of the price, and returned tbe bill to tbe alleged seller. It is at least a reasonable implication of tbe decision in that ease that bad be retained tbe bill and made no protest whatever it would have constituted prima facie evidence that tbe values therein specified were correct. Applying this well-established rule in tbe present case, we think tbe court was justified in bolding that defendant’s silence and retention of tbe bills without protest might be construed as an admission on bis part that tbe price therein named was that at which the separator bad béen purchased, and therefore that tbe finding of $100 as sucb value or price bad some evidence in its support. It therefore cannot be set aside, and, with the-other findings, suffices to support the judgment appealed from.

By the Court. — Judgment affirmed.