McCann v. Doherty

98 Wis. 335 | Wis. | 1898

Cassoday, C. J.

It is undisputed that the plaintiffs commenced the work of cutting and banking the logs under the contract soon after it was made; that Gallagher commenced scaling the logs so cut and banked December 15, 1892, and continued such scaling until February 27,1893; that during that time he had scaled, according to his count and measurement, 28,578 logs, containing 3,801,330 feet; that the balance of the logs cut and banked by the plaintiffs under the contract were scaled by Wallace Stevens, and they contained 1,261,550 feet,— making in all, with those scaled by Gallagher, according to Gallagher’s scale, 5,062,880 feet, being the amount admitted in the answer. The plaintiffs allege in their complaint that Gallagher, either by mistake or with wilful intent to cheat and defraud the plaintiffs, erroneously scaled such logs, and rendered an account thereof below the true, honest, and just amount thereof, to the extent of.eleven per cent, less than the actual and true scale.

It is contended on the part of the plaintiffs that no scaler was agreed upon as prescribed in the contract, but that at the suggestion of the defendant the plaintiffs consented to allow Gallagher to scale on trial, with the understanding that either party was at liberty to object in case of dissatisfaction. After Gallagher had been scaling the logs for two or three Aveeks, the plaintiffs claim, they became suspicious, and so tested 130 or 140 logs, and compared the same with Gallagher’s scale, and found them, to be about fourteen per cent, short, and informed the defendant of the fact. A considerable negotiation in respect to getting another scaler followed, until February 21, 1893, when the plaintiffs secured the district scaler to make a test of the accuracy of the scale so made by Gallagher. The test was made by scaling 710 logs taken promiscuously from different rolls, and they were found to contain 21,720 feet more than represented by Gallagher’s measurement.

It was contended by counsel on the argument that, even if such shortage existed as to the 710 so rescaled, yet it did not follow that there would be a corresponding shortage on the 27,868 logs which were not rescaled; and some of us-were impressed with such argument. But upon careful consideration we are forced to the conclusion that the verdict does not rest whollyupon such test. On the contrary, there Avas a number of other tests, and there was evidence tending directly to impeach the good faith of Gallagher’s scale. The evidence of such tests wras admissible. In fact, no objection appears to have been made to its admission. After being banked, tjie logs passed into the possession of the defendant, so as to render complete remeasurement by the plaintiffs very difficult, if not impossible. By the agreement of the parties, the only question for the jury to determine was as to the amount of logs the plaintiffs put in under the contract. This eliminated from the case all other issues Avhich would otherwise have been determined by the jury,— including the question whether the parties agreed upon Gallagher as the scaler under the contract.

The charge of the court is not in the record. We must assume, therefore, not only that it was without error, but that it covered every phase of the case and every fact which had any bearing upon the amount of logs the plaintiffs put in under thé contract. In other words, the party alleging error has the burden of showing error. The court refused to set aside the verdict and substitute for the quantity of logs so found by the jury the quantity admitted in the defendant’s answer. The court also refused to set aside the finding of the jury and grant a new trial. Upon the whole record, we cannot say that such ruling was an abuse of discretion, nor that the evidence is insufficient to support the finding of the jury. As the record stands, the plaintiffs are entitled to have the case regarded in the light most favorable for sustaining the finding of the jury.

It is true, such finding is for the amount of 40,937 feet in excess of what is alleged in the complaint; but it was not brought to the attention of the trial court, and no ruling was made upon it, and no exception is taken on that ground. Such an objection cannot be properly raised in this court for the first time.

The court properly held the defendant liable for the bark-marking.

By the Court.— The judgment of the circuit court is affirmed.

"Makshall, J., took no part.