Smith v. Carter

25 Wis. 283 | Wis. | 1870

Dixon, O. J.

There was no error in receiving the evidence of the verbal agreement and- understanding of the parties at the time of the making of the note. The object was to show a partial or total failure of the consideration for the note'; and for that purpose the evidence was admissible. Peterson v. Johnson, 22 Wis. 21, was just such a case, and is decisive of the point.

The other objections are as to the set-off of the value of the three rafts alleged not to have been delivered to the defendants in error by Cunningham, in pursuance of his contract of sale, and as to the sum allowed the defendants in error for stumpage paid by them to'Adeline Mosier for logs cut upon her lands.

We are inclined to think the construction given to the bill of sale by counsel for the plaintiff in error is correct. If the three rafts did not belong to and were not .in the possession of Cunningham at the time of making the bill of sale, then they were not included in it, and no title passed to the defendants in error. The objection of counsel for the plaintiff in error is to the proof upon this point. They say that it was incumbent on the defendants in error to prove that the three rafts belonged to and were in the possession of Cunningham at the time of the sale, and that the defendants in error did not do so. The answer to this objection is, that the bill of exceptions does not state that it contains all the évidence, and without such statement we cannot examine the question.

And the other objection must fail for the' same reason. It is said that it was not shown that Cunningham was a trespasser upon the lands of Adeline Mosier, or, if he was, that the logs cut by him upon her land were among those sold to the defendants in error, and therefore they ■were not justified in paying for the stumpage. It is obvious that questions of this nature cannot be considered by this court, unless the bill of exceptions contains all the evidence, and it is so certified by the judge who signs it, or stipulated by counsel who tried the cause.

These considerations sufficiently dispose of all the exceptions taken, and show that there was no error committed upon the trial for which the judgment should be reversed.

By the Court — Judgment affirmed.

A motion for a rehearing was denied.