55 Wis. 134 | Wis. | 1882
The learned counsel for the appellant assigns as errors: (1) That there was no proof given on the trial showing any conversion of the logs in question by the defendant at the time the action was commenced. (2) That
Without giving any statement or even summary of the evidence tending to prove a conversion of the logs by the defendant, we think it was sufficient to sustain a verdict in the plaintiff’s favor upon that point, if he showed himself entitled to the possession at the time he commenced his action. The defendant not only took a conveyance of the logs from Newton in such form as to give him a right to the possession thereof if Newton had such right, but he put such transfer on record in the office prescribed by law for the record of all claims and titles to logs. This act was a declaration on his part that he made claim to the right of possession, at least, of these logs. When they were demanded of him, he did not disclaim any right to them; and after-wards, and pending the action, he sold them. We think this evidence was sufficient to go to the jury on the question of conversion at the time the action was commenced. See Smith v. Schulenberg, 34 Wis., 41.
The exception to the parol evidence of Blaisdell, as to the number of feet of logs in controversy, we think was well taken, and should have been sustained by the court. The ■sealing and measuring of logs and lumber has been deemed of sufficient importance to those engaged in the business of lumbering to call for legislative regulation, and for the appointment of officers who are charged with the duty of making such scales and measurements and preserving records thereof. Their duties in this respect are defined in
It will be seen that the contract between Langley & Rlais-dell and Newton provided for scaling the logs in question in the manner prescribed by the statute; and the evidence given on the trial shows that such was made, and was probably delivered to Newton. There is perhaps, a legal presumption that the inspector who scaled the logs did his duty in this respect, and entered the scale in the books of his office, and1 furnished a properly certified bill to Newton, who appeared to be the owner of the logs so scaled.
The legislature having provided that written evidence of the measurement of logs and lumber should be made by a public officer, and a record thereof preserved in a public office, and that a certified bill thereof, made by him and delivered to the-owner, should be presumptive evidence of the correctness of such scalement or measurement in all courts, except in favor of the person making the same, such written evidence, when it exists and is attainable, must be deemed the best evidence of the number of feet in the lot of logs so scaled and meas
As to the third assignment of error, we think the circuit court properly excluded the evidence offered by the defendant showing that Langley & Blaisdell were not the owners of the lands upon which the logs in question were cut, for two reasons: first, because the evidence that they did not own the lands from which the logs were cut would not prove that they were not the owners of the logs; and second, because the right to the possession of the logs by the defendant, if he had any such right, was derived from the said Langley & Blaisdell through Newton. Having obtained the possession of the logs in question from the same persons under whom the plaintiff claims, it is very clear that the defendant cannot question the title of the party under whom both parties claim, unless some third person having a better title has deprived the defendant of his possession derived from the plaintiff’s vendor. The question raised by this exception was ruled against the defendant by this court in the case of Weymouth v. Railway Co., 17 Wis., 550. The late learned Justice Paine, in his opinion in that case, says: “We think also that the court properly instructed the jury that if they found that the plaintiff was in possession of the land from which the wood was cut, and in possession of the wood, the defendant could not defeat a recovery by showing title to the land in Ogden, there being no offer ‘by the defendant to connect itself with such title. It is true, there are cases where it is stated generally that in trover the defendant may show title in a third person; but that should be understood as assuming that the defendant offers at the same time to connect himself with such title.” The cases cited by the learned counsel for the appellant, which hold that title in a
The circuit judge was clearly right in excluding the evidence of conversations between the parties before the execution of the written contract. Oral conversations had between the parties to a written contract cannot be received as explanatory of the writing. Such conversations do not come within the rule that “you may show the facts surrounding the parties at the time, and the situation in which they were placed, in order to interpret the meaning of what they say in their contract.” Professor Greenleaf says: “ Evidence which is calculated to explain the subject of an instrument is essentially different in its character from evidence of verbal communications respecting it.” The conversations between the parties previous to making the written contract are clearly verbal communications respecting it, and must be excluded as such. The questions asked and excluded were the following: “ "What was said between you and Blaisdell at $he time of making the contract, with reference to making advances of supplies on the T. diamond P. logs?” “ State fully the circumstances attending the making of the contract, which occurred at the time the contract was made.” This was not evidence which was calculated to explain the subject of the writing or aid in its interpretation, but was clearly intended to show what construction the parties put upon it at the time it was made, and is clearly inadmissible.
As we have concluded that the judgment must be reversed because of the error in admitting the parol evidence as to the scale of the logs, it is unnecessary to consider the other objections to the record made by the learned counsel for the defendant, as they relate to matters which may not arise upon a re-trial.
"Whether Newton’s mortgagee was entitled to hold the possession of the logs in question under the provisions of the
The contract between Langley & Blaisdell and Newton was duly recorded in the proper inspector’s office, and so was notice to the defendant and all other persons of the interest which Newton had in the logs in question; and he -cannot claim to be a bona fide purchaser because the logs were marked with the recorded mark of Newton. He is chargeable with knowledge of the right of Langley & Blais--dell as to the logs in question, notwithstanding the recorded mark was Newton’s. See sec. 1739, E. S. 1878.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.