Stickney v. Smith, Baker & Co.

5 Minn. 486 | Minn. | 1861

By the Oowrt.

Emmett, C.J.

The first objection urged by the Appellants is, that on the cross-examination of a witness who had stated in chief that the logs were cut on the St. Croix river, in the winter of 1859-60, the Court excluded this question : “ Who were engaged in cutting their logs in the winter of 1859-60 ?” The question was excluded on the ground of immateriality, and because it was not a cross examination.

When, where, or by what particular persons these logs were cut, was not material to any issue in the case. The answer alleges that they were “ got out” by Jackman and Gardener, and were in their possession and belonged to them. The reply denies Jackman and Gardener’s possession and property, but is silent as to their getting out the logs There was no issue therefore as to who actually cut or got out the logs, and when or where it was done was immaterial. Again, the question Was entirely too broad. It was not directed either to th§ time and place stated by the witness in bis examination in chief, nor indeed was it specially confined to the logs about which he had been testifying. He had not stated who cnt them, nor who were engaged in cutting logs that winter, while the question was, “ Who were engaged in cutting their logs during the. winter of 1859-60.” It may be said that this had the range of the entire lumber district, embracing all the logs cut that winter, and every person engaged therein.

The second and third objections refer to evidence admitted touching the quantity of logs. taken by the Defendants, or scaled by them, but we deem it unnecessary to discuss or determine the merits of either, inasmuch as there is really no issue as to the quantity. It will be found, on examining the pleadings, that the complaint alleges the taking and conversion of 199,386 feet. The answer admits and attempts to justify the taking of “ about 200,000 feet.” This, we think, is an admission of the quantity alleged in the complaint, and therefore, even admitting that the Plaintiffs proved the number of feet, by incompetent evidence, still the error could not prejudice the defendants.

The fourth ground of objection is that the complaint does not state a cause of action, because it alleges that the Plaintiffs were possessed of the property taken, as of their own proper goods, whereas the Plaintiffs should have alleged, either that they were the owners, or that they had a right to the possession as bailee,. &c., as the fact might be ; and it is claimed that the allegation leaves it in doubt whether the Plaintiffs were really the owners, or had but a mere right to the possession ; or whether they were actually in possession, or constructively only.

We do not think this, objection is well taken. The allegation is one familiar to common law pleadings, and is used and understood as alleging possession and ownership, as contra-distinguished from possession without ownership, and followed, as it is in this case, by the allegation, “ that the Defendants, on, &c., wrongfully and forcibly took the. said logs from the possession of the Plaintiffs,” I do not think that the pleading can be made to mean anything other than that the Plaintiffs were in the actual possession of the property at tbe time it was taken. If, however, these doubts did reasonably exist, it was the duty of the Defendants to remedy it by a motion to have the pleading made certain.

Again, it. is urged that the Plaintiffs did not prove that there was a partnership by the name of Smith, Baker & Co., nor that the firm of Smith, Baker & Co., was in possession. There was sufficient evidence of these facts to sustain the verdict. Baker, one of the Defendants, testified that the logs were in the possession of the Plaintiffs — that he, with Charles R. Gardener, Nathaniel Southwark and Frederick Gardener, was on the logs at the time they were taken, and that Gardener and Southwark were employed by the Plaintiffs. He also testified that the Plaintiffs had agreed previous to that time, in October or November, 1859, to go into partnership in the logging business. The jury might readily find from this testimony, the fact of partnership in the Plaintiffs, and their possession of the logs at the time they were taken by the Defendants. And the omission to prove the particular name by which the Plaintiffs alleged the firm was known or called, does not materially affect the substantial rights of the Defendants. The Plaintiffs sue in their individual names, alleging their joint interest as partners, under a certain name; and having proved the partnership, it was sufficient, whether they proved the firm name or not. The partnership, not the name, is the material allegation to be proved.

The Defendants further insist that there was no evidence of a Lconversion, but as a conversion^may be inferred from the taking of the property, and neglect to return it to the Plaintiffs, as well as from the sales thereof admitted in the answer, we think there was evidence sufficient on that point to sustain the verdict.

The judgment is affirmed.