97 Wis. 373 | Wis. | 1897
The complaint alleges, in effect, that on and between October 1, 1895, and July 1,1896, the plaintiffs, as copartners, at the special instance and request of the defendant, sawed hardwood timber to the amount of 289,592 feet for the defendant, at the agreed price and of the reasonable value of $3.75 per thousand feet, making altogether $1,085.97; that no part thereof had been paid, except $884, paid at various times between June 1, 1896, and July 30, 1896; and that there was still due from the defendant, for such work and labor, to the plaintiffs, $201.97 and interest thereon from July 30, 1896; and demands judgment for that sum. The answer admitted the partnership and the sawing of some hardwood lumber for the defendant, but denied that such sawing was reasonably worth $3.75 per thousand feet, or that there was an agreement to pay therefor $3.75 per thousand ; and alleged that the plaintiffs agreed to saw the lumber for $3.50 per thousand feet, and that the defendant had paid
It may be questionable, in view of the admissions in the answer, whether the denial of things not admitted raised any issue as to the amount of lumber'sawed by the plaintiffs for the defendant. But, assuming that it did, still the positive testimony on the part of plaintiffs is to the effect that they measured and kept account of the, lumber as sawed, and entered the same upon their books, and that the amount was 289,592 feet, and that Hamilton, who represented the defendant in respect to the same, looked over such entries in their books, and apparently acquiesced in the amount of such entries. The defendant attempts to account for the disposition of the lumber to different parties, and in that way concedes that there was 257,575 feet; but such evidence is very unsatisfactory as to the exact amount of the lumber sawed.
It is claimed, however, that such evidence on the part of the plaintiffs was inadmissible, by reason of the fact that Hamilton died prior to the trial, without his testimony having been taken. The statute made each of the plaintiffs incompetent to testify “in respect to any transaction or communication by him personally with ” Hamilton. E. S. sec. 4070. Had timely and proper objections been made as to their competency to testify as to Hamilton’s examination of such entries in the books, their testimony in that respect ■would probably have been excluded;, but no such objection
Another issue in the case is as to whether the agreed price for the sawing was $3.75, or only $3.50. One of the plaintiffs being upon the stand as a witness, the defendant’s counsel was permitted to examine him; and on such examination he testified, without objection, to the effect that a written contract was drawn and signed by the plaintiffs, and delivered to Hamilton, who took the same away with him. Subsequently the defendant objected to such testimony, as not responsive to his question, but the referee was not asked to strike it out, and it was not stricken out. The counsel for the defendant was requested to produce such written contract upon the trial, but he failed to do so; and there is no evidence that it was ever signed by the defendant. One of the defendant’s witnesses testified to the effect that he was present when the'bargain was made, and that the plaintiffs, asked $4 per thousand for such sawing; that Hamilton then offered the plaintiffs $3.75; that, when plaintiffs asked about the contract, Hamilton said his word was as good as a bond and that he heard nothing more about a written contract. Besides, the complaint alleges that the sawing was of the reasonable value of $3.75 per thousand feet. No election
By the Court.— The judgment of the superior court of' Milwaukee county is affirmed.