125 Wis. 138 | Wis. | 1905
Exception is urged to tbe ruling permitting a witness to read from a memorandum while testifying. One of tbe plaintiff’s witnesses testified that be made memo-randa of log marks, as be found them on tbe logs, in a notebook which be produced, and tbe court thereupon permitted him to read tbe entries so made. It is urged that this does not furnish a sufficient foundation to make bis evidence competent. Tbe court evidently regarded tbe witness’s statement as equivalent to tbe assertion that be bad made tbe entries and that they were correctly made. We think this significance can properly be ascribed to tbe answer of tbe witness. Under ■sucb circumstances it was proper to allow tbe witness to read from tbe entries made by him. Manning v. School Dist. No. 6, 124 Wis. 84, 102 N. W. 356.
Tbe same witness was also permitted to give bis opinion of tbe market value of tbe logs in question. I't appears that be bad been employed in tbe plaintiff’s logging business for a number of years, and bad learned tbe general market value of pine lumber, and that prior to testifying be bad learned of market values from reported prices and from sales made by him. ITe was sufficiently informed to be qualified to speak on this subject.
Error is alleged upon the ground that tbe court permitted Mr. Chute, plaintiff’s manager, secretary, and treasurer, to testify concerning tbe filing of log marks under tbe laws of tbe ■state of Minnesota, tbe custom of boom companies in handling
At tbe conclusion of plaintiff’s testimony appellant moved for a nonsuit upon tbe ground that tbe evidence adduced failed to identify-tbe lumber seized by-tbe plaintiff under tbe writ as lumber manufactured out of tbe logs which respondent claimed were wrongfully taken from its possession and detained by defendant, and that there was no evidence tending to show title or right of possession to tbe logs in respondent. Tbe evidence adduced tended to show that respondent boom company was
It is contended that the court erred in striking out the jury’s negative answer to question No. 4 of the special verdict and in answering it in the affirmative. By this answer the jury found that appellant did not wilfully and indiscriminately intermix these logs and the lumber he manufactured out of them with the logs and lumber owned by him. It is apparent from the opinion of the trial, court that it concluded that the fact was undisputed in the case. It appeared that Hackett had no title to or interest in the logs when he sold them to appellant; that appellant had no knowledge or information to the effect that Hackett was a dealer in logs or lumber or that he was in any way engaged in the lumber business; and that appellant purchased the brail of logs for the small sum of $19.50, when he well knew that they were worth a much larger sum in the market. The jury’s findings that he had good reason to believe at the time he purchased the logs that Hackett had secured possession of them wrongfully, that he had been in
"When the verdict had been so framed the court awarded; judgment in respondent’s favor.for the recovery of the logs- and lumber seized by the officer, and for costs. It is contended' that this is error. The jury found that the brail of logs contained 8,000 feet of manufactured lumber, that the total value.' of the logs was $120, and that the quantity recovered by respondent was worth $30, which, on the basis of valuation: found by the jury, would be one fourth of the whole amount.;; thus showing that three fourths of the logs had been manufac1-tured into lumber, which, upon this calculation, amounted to 6,000 feet. The officer seized 20,000 feet of the manufactured lumber, or 14,000 feet in excess of the amount the logs yielded. The trial court awarded judgment for the recovery of the whole amount seized by the officer, upon the ground that a wrongful confusion of goods operates as. a forfeiture of the interest of the wrongdoer in all of the goods so intermixed! To operate such a forfeiture it must appear that the lumber manm factured out of the respondent’s logs and that of appellant with
“Even if the commingling were malicious or fraudulent, a rule which would take from the wrongdoer the whole, when to restore the other his proportion would do him full justice, would be a rule wholly out of harmony with the general rules of civil remedy, not only because it would award to one party a redress beyond his loss, but also because it would compel the other party to pay, not damages, but a penalty.” Cooley, Torts, 53. For cases on this subject, see Eldred v. Oconto Co. 33 Wis. 133; Jenkins v. Steanka, 19 Wis. 126; Starke v. Paine, 85 Wis. 633, 55 N. W. 185; Lupton v. White, 15 .Ves. Jr. 432; 6 Am. & Eng. Ency. of Law (2d ed.) 595-597; 8 Cyc. 571.
We are constrained to hold that the judgment is erroneous, in that it awarded to respondent the right to hold and retain •the logs and 20,000 feet of lumber seized by the officer under Ihe writ of replevin. Respondent was entitled to the logs .■seized, and to its full proportion out of the entire quantity of lumber seized, namely, 6,000 feet, and the costs of the action; and appellant was entitled to a return of the excess of the lumber so seized, or, if the lumber could not be returned, to its value, without any damages for the seizure of such excess under the writ of replevin.
Appellant’s printed case fails to comply with Rule VIII of this court in that it contains duplication of record matters, and a failure to properly abridge the record to the extent
By the Court. — Tbe judgment of tbe circuit court is hereby reversed, and tbe cause is remanded with directions to enter judgment according to this opinion; appellant to recover costs on this appeal.