113 Wis. 659 | Wis. | 1902
Many errors are assigned, but they will not be taken up in detail. Tbe general view which we take of tbe case renders specific treatment of each alleged error unnecessary. The case was really a simple one, though it seems to-have developed some complications as tbe trial progressed,, which, however, were more apparent than real.
Tbe Red Cliff Lumber Company owned the timber in question. Mclnnis & Sons had contracted to cut and bank it as-directed by the owner on the shore of Lake Superior during the winter of 1899 and 1900. Thereafter the plaintiff contracted with McInnis & Sons to cut, haul, and deliver in Labe-
This view of tbe case clears it of some of'tbe difficulties, and brings us at once to tbe consideration of tbe defendants’’ counterclaims for tbe alleged breaches of tbe contract, and of tbe plaintiff’s claim of a subsequent contract by which full performance was waived; and as this subsequent contract is also alleged to have contained tbe agreement to pay twenty-five cents -per M. for hauling logs already cut and banked, on which tbe plaintiff’s second cause of action rests, it is evident that if it was in fact made, and was a valid and binding agreement, tbe plaintiff was entitled to recover upon both causes of action, and tbe counterclaim falls. In order to cover this ques-
We are satisfied that none of these claims can be sustained. There was ample consideration, upon very familiar principles, to support tbe new promise. Tbe plaintiff was not bound by. bis original contract with defendants to get tbe logs to Lake Superior in any particular way. He apparently bad bis choice of means, so long as the logs were there at tbe close of tbe season. He chose to bank them upon tbe ice of tbe creek, and rely upon running them down that stream in tbe spring. This be doubtless bad a right to do, as between himself and Mc-lnnis; thereby assuming tbe risk of resulting damages in case tbe creek proved to be an unfit stream to float logs upon. Having deposited about half of tbe logs on tbe creek, tbe plaintiff is met by an order from tbe owner of tbe land, wbicb bad reserved the right to control tbe manner of cutting and banking
As to whether there was evidence to support the qualification embodied in the question put to the jury, namely, that the plaintiff was to use his existing force and outfit, the question presents more difficulty. It is true that there is no direct evidence that this expression was used. Nevertheless we think that, considering the situation of the parties, no other construction can be reasonably implied. The plaintiff testified directly that John Mclnnis told him he would not ask him to cut another stick of standing timber, but that, if he (plaintiff) could get the logs out which were in the creek, he (Mclnnis) would not ask him to do any more; and there was other testimony to the same effect. Considering the situation of the parties, it seems unreasonable to say that the parties could have contemplated anything more than the use by the plaintiff of his existing force and outfit. It was in the midst of the season. The plaintiff had his force of men on the ground, and a camp and logging outfit established, commensurate to the force at work and the contract assumed. There was no intimation of any desire or demand that he should increase the force or the outfit, and it would
These considerations, in effect, dispose of the case. There is no question but that the plaintiff was instructed not to use •dynamite.in getting the logs out of the creek, and no attempt was made to show that he did not get out and haul down all the logs that he could get out without the use of dynamite.
The specific errors assigned do not affect the determination of the material issues, but some of them will be noticed:
The defendants proposed twelve instructions, which were refused; but the question of their correctness is not open to consideration, because no exceptions were taken to the ruling until after the verdict. Little v. Iron Liver, 102 Wis. 250.
. Testimony was introduced by the plaintiff, under objec
Tbe defendants claim that plaintiffs reply contained inconsistent defenses to tbe counterclaims. There was, however, but one defense relied upon and submitted to tbe jury,, and no objection was made to the form of tbe pleading in tbe trial court. Furthermore, it is well settled that a party may plead as many defenses as be has, although they may be based on inconsistent legal theories. South Milwaukee B. H. Co. v. Harte, 95 Wis. 592; Stats. 1898, sec. 2657.
Tbe contract between tbe defendants and the Red Cliff Lumber Company was offered in evidence by tbe defendants, and rejected, and exception taken. After tbe argument to tbe jury was begun, however, tbe plaintiff withdrew bis objection, and tbe contract was received in evidence; tbe defendants objecting to the' withdrawal of tbe plaintiff’s objection. It was not claimed that tbe defendants were debarred from putting in other evidence outside of tbe contract by reason of its rejection. We can see no prejudice wbicb could result from tbe fact that it was received so late in the trial, and hence tbe rulings form no ground for reversal, even if tbe rejection at first was erroneous. Upon tbe whole case, substantial justice seems to bave been done, without prejudicial error.
By the Court. — Judgment affirmed.
One of tbe questions submitted to the jury was whether it was agreed between tbe parties that, if plaintiff would haul tbe logs banked in Bardon creek to the lake, be would be relieved from putting in so much of tbe timber as be bad contracted to put in as be could not get in with bis