Kvammen v. Meridean Mill Co.

| Wis. | Oct 23, 1883

Cassoday, J.

The real question in controversy was whether, by the agreement, the plaintiff was to receive, for manufacturing the laths, forty-five or twenty-six cents per thousand. The plaintiff was the first witness, and after being examined and cross-examined, was asked by his counsel on his redirect examination this question: “Do you know what the usual price was last season for sawing laths?” This question he was allowed to answer, against objection, and stated that it was “ forty-five cents a thousand.” It is sought to justify this ruling on the ground that the evidence tended to corroborate the plaintiff as to the amount which the defendant agreed to pay. In support of this contention counsel cite Johnson v. Harder, 45 Iowa, 677" court="Iowa" date_filed="1877-04-20" href="https://app.midpage.ai/document/johnson-v-harder--avery-7097319?utm_source=webapp" opinion_id="7097319">45 Iowa, 677. It is there stated, in the opinion of the court, “ that there was a great •discrepancy in the terms of the trade as alleged by the respective parties, and strong evidence was introduced by each party in proof of their respective allegations. The question then is,” said the'court, “ as to whether, under such circumstances, it is allowable for either party to show the value of the property as a corroborative circumstance.” The court held that under the circumstances of that particular case the evidence was admissible, but in doing so said that “ evidence of the kind in question should be admitted with great •caution, and limited to its strictly legitimate province.” That •case was clearly distinguishable from the one before us. This is more like the case of Campau v. Moran, 31 Mich. 280" court="Mich." date_filed="1875-01-29" href="https://app.midpage.ai/document/campau-v-moran-7927961?utm_source=webapp" opinion_id="7927961">31 Mich. 280, cited by defendant’s counsel, where it was held that ■“ under a count upon a special contract as performed, which seeks to recover the.contract price, evidence of the cost or value of the work contracted to be performed is inadmissible.”

In the late case of Hackley v. Headley, 50 Mich., 43" court="Mich." date_filed="1883-01-18" href="https://app.midpage.ai/document/headley-v-hackley-7931030?utm_source=webapp" opinion_id="7931030">50 Mich., 43, it was held by the same court, that “evidence of a custom is inadmissible where that to which the custom relates has been expressly provided for in the contract in terms different from the custom.” See, also, Lombardo v. Case, 45 Barb., 95" court="N.Y. Sup. Ct." date_filed="1865-11-06" href="https://app.midpage.ai/document/lombardo-v-case-5461079?utm_source=webapp" opinion_id="5461079">45 Barb., 95; White v. Lueps, 55 Wis., 222" court="Wis." date_filed="1882-05-10" href="https://app.midpage.ai/document/white-v-lueps-6603808?utm_source=webapp" opinion_id="6603808">55 Wis., 222; 1 Phillips on Ev., 748; 1 Greenl. on Ev., § 52.

Undoubtedly the evidence must conform to the allegations, and must be the best of which the case is susceptible. -It may be, as intimated by Mr. Justice Cooley in Campau v. Moran, supra, that where the evidence adduced upon both sides is in direct conflict and pretty evenly balanced, as to the contract price, evidence that the cost of performance was greatly in excess of or greatly below such price might afford some reasonable ground for believing that the contract was for the price nearest the cost. But it is unnecessary to determine the question here, for the evidence sought by the question, and obtained by the answer, did not relate-to the cost of manufacturing laths in this mill, where the party was furnished with the mill, and power to operate the-machinery, the oils, the files, and the twine to tie up the laths, and where the defendant also did the filing and the millwright work. Besides, the contract was made with direct, reference to manufacturing the laths in the defendant’s mill, and not in some other mill, or in mills generally. If the circumstances of the case had authorized the admission of evidence of the character indicated, then it should have been confined to the doing of the same work which the plaintiff did in manufacturing the laths in question. We are clearly of the opinion that the question referred to, as well as several others in the record of like character, was irrelevant,, and should have been excluded.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.