100 Wis. 174 | Wis. | 1898
The points made by the appellant will be considered in their natural order.
1. The action was upon promissory notes. The defense
2. A question is raised as to the impaneling of the jury. The case was tried in November, 1896, at an adjourned session of the August term. At the time of the’ adjournment one juror only had been retained. "When court met in November this case was called, and the defendants claimed that there had been an oral stipulation that the coroner should summon the jury, but this was denied by the plaintiff’s attorneys ; whereupon the court asked them if they had any personal objection to the coroner 'summoning the jury except that it was out of order, to which they replied, “ No,
Doubtless the position so taken is right. The statutes governing the subject — R. S. 1878, sec. 2537 (as amended by ch. 126, Laws of 1895), and sec. 2538 — very clearly provide two different methods of obtaining additional jurors during the term to meet two different contingencies: (1) When there is an entire absence of jurors, or when the regular panel is deficient in numbers, then the deficiency is to be supplied by drawing names from the box containing the names of petit jurors for the year, and these jurymen, when summoned, become jurors for the remainder of the term; (2) when, however, it is not necessary to fill up the panel of jurors for the term, but when on account of challenges, or perhaps on account of one or two trial juries being engaged in the jury room, it becomes impossible to obtain enough jurors from the panel in attendance to try a given cause, then the court may require an officer to call from the bystanders or summon from the county at large enough talesmen to complete the panel for such trial, and these men, when summoned and accepted, become jurymen for that case only, and not for the term.
8. The answer contained no claim by the defendants for damages resulting from the attachment, nor was any written claim made therefor, but the defendants were allowed, against objection, to introduce evidence on the subject, in connection with the evidence on the main issue of extension of the time of credit, and both issues were thus tried together. It is claimed that this was erroneous, and that the claim should be made by pleading, so that the plaintiff may be apprised before trial of what he has to meet; or, if this be not necessary, then it is claimed that the question of damages should not be tried until the main issue has been settled by the jury. There is certainly much force in the argument in favor of the plaintiff’s claim. It seems but fair that he should know before proceeding to trial on the main issue that he will be called upon also to meet a claim for damages, and it may well be that the introduction of a large
4. We proceed now to the main question in the case, namely, whether the evidence justifies the verdict to the effect that there was a valid and binding agreement of extension of the time of payment of the notes in suit. It appears from the evidence that the defendants owed the plaintiff bank $40,000 on the 22d day of May, 1895, and then gave the plaintiff security therefor, in the form of a bill of sale to one Perley Lowe, who held it for the bank, on 7,500,000 feet of logs in the river at Hawthorne, mixed with other logs of the defendants, and immediately afterwards secured an additional
The radical difficulty with the defendants’ claim is that, conceding all their testimony to be true, there is no agreement shown to extend the time of payment to any definite and certain time. The notes which are claimed to have been extended were not taken up. They were all payable at definite times, and, in order to extend them, it is plain that there must have been a binding agreement made, changing them, and extending the time of payment to some other definite and fixed time. Mere giving of time indefinitely will not avail. Brandt, Suretyship & G. (2d ed.), § 344. That the supposed extension of time here was to the last
The defendant Gross testifies as follows as to the agreement: “ Mr. O’Dell said he simply wanted thirty-two thousand dollars’ worth of lumber, and, if there was more than thirty-two thousand dollars’ worth of lumber, that that should be considered as ours, to use in our regular business, and the balance due was to be carried. The fifteen thousand five hundred dollars was to be carried until the logs could be converted into lumber that were in the stream.
Upon this evidence it is entirely certain that no agreement extending the time of payment to any definite time was ever made. This is not such a case as that of Moulton v. Posten, 52 Wis. 169, where an agreement to extend payment until after “ threshing time ” was held a sufficiently definite and certain time of year to give the contract validity and bind the creditor. The agreement here (if any was made) was that the defendants were to continue selling the lumber as fast as they could, in the regular course of business, and make payments from the proceeds. There is no possible way of determining when this could be accomplished, and hence the supposed agreement is too vague and uncertain to be enforced.
5. An important question is raised as to the measure of damages. As indicated in the statement of the case, a very large portion of the property levied upon consisted of sawmill and planing-mill buildings and machinery (Avhich were personal property because situated upon leased land), together with boom chains and sticks and other property necessary for use in and about the mills. The defendants placed the value of this property, prior to the levy of the attachment, at from $31,500 to $34,000, and testified that the depreciation in the value thereof by reason of the attachment was from $27,000 to $31,000. It does not appear that the property had been damaged after the levy by wear and tear or
The charge of the court is not preserved in the bill of exceptions, but the verdict was based upon estimates of this character, and the question is raised, by objections taken to the evidence, whether such estimates form a proper basis for damages. In case of a wrongful levy upon a stock of goods kept for sale, which are afterwards returned to the owner, he may recover as part of the damages any depreciation in the value of his goods during the time they are held. Anderson v. Sloane, 72 Wis. 566; Beveridge v. Welch, 7 Wis. 465. The reason is plainly because the goods are kept for the purpose of sale, and, had they not been seized, they might have been sold at their value when seized; hence the depreciation in value may be properly said to be a reasonable and certain dement of damages. But when property kept for use, and not for sale, is attached, the reason no longer holds good, because there is no presumption that the property would or could have been sold, but the presumption is to the contrary. It is settled by our own decisions that there can be no recovery for supposed loss of profits from the interruption of
Some objections were made to the form of the special verdict, but we do not consider them well taken.
By the Court. — Judgment reversed, and action remanded for a new trial.