| Wis. | Jan 15, 1866
The appellants assign for error that the circuit court refused to give the first and third instructions asked by them. The first was : “ If the jury find that the plaintiff has not strictly complied with the terms of the contract, he can only recover the actual value of the logs.” The plaintiff, by the terms of the contract, was to deliver logs to the amount of four hundred thousand feet or more, not exceeding one million feet; and he delivered, according to the testimony, about five hundred thousand feet. To have granted this instruction would have been equivalent to saying to the jury, that if they found the plaintiff delivered on the contract a single log not of the quality called for by it, and all the others were of the quality required, and delivered according to its terms, and amount
The third instruction asked was : “If the jury find that the logs were not all scaled by Richardson, the amount he did scale was not conclusive upon the defendants, but the estimate placed upon said logs by other witnesses is competent testimony.” The evidence is to the effect that the parties agreed that Richardson should scale the logs, and that he did scale all of those called the Leveright logs, and all known as the Ellis logs, and the remainder he scaled a part of, and estimated what he did not scale. We are unable to find any evidence that any other witness or witnesses estimated or scaled the whole of the logs, or estimated the identical logs actually scaled by Richardson. We do not, therefore, think there was testimony on which to base this instruction, and we see no reason why Richardson’s measurement as to the logs he actually scaled was not conclusive upon the parties.
It was proper that the jury should allow interest, and the testimony sustains the verdict. The objection that there was no replication to the defendants’ answer to the amended complaint, was not made in the court below; and it was here on the argument admitted that the parties went to trial in the circuit court, and treated the replication to the first answer setting up the counter-claims as a replication to the ■ answer to the amended complaint. The record also furnishes prima facie proof to the same effect. We think the appellant is bound by his action in this respect in the circuit court.
By the Court. — The judgment of the circuit court is affirmed.