35 Wis. 274 | Wis. | 1874
The corporate existence of the plaintiff was admitted. It was alleged in the complaint, and not denied by the answer. The receiving and storage of the logs of the defendant, at his request, in the booms possessed and controlled by the plaintiff, wa.s directly and explicitly shown. The witness McCarty, the boom-master of the plaintiff in charge of the booms, testified that the defendant himself brought up the board with the marks of his, defendant’s, logs upon it, and delivered it to the witness at the opening of the divide where the logs were to be taken from the open river and turned into the booms. The same witness, speaking of the defendant, also testified: “ He told me to turn all of his marks into the boom.” There was other testimony, though less pointed and direct, tending also to establish the request. A good prima facie case was made in this particular.
The position assumed in this behalf by counsel for the defendant, that no request could be made by the defendant or contract entered into by or with the company for the storage of logs in its booms except in the manner prescribed by section 12 of the charter of the company (P. & L. Laws of 1871, ch. 45, sec. 12), is untenable. The design of that section was to facilitate the business of the company by enabling its officers and agents to ascertain in advance of the log-driving season
The company having charged or claimed no more for the storage of the logs than by section 13 of the charter it was authorized to demand and receive, we are of opinion that a presumptively valid agreement was shown by the evidence, and that the nonsuit was in this respect wrong.
The other ground of nonsuit urged, and upon which it seems to have been in part, if not wholly, granted by the learned judge of the circuit court, is, that the defendant is or was a tenant in common with the plaintiff, or some other persons, of the booms, piers and fixtures, or some part of them, in which the logs were stored, and that, being such tenant in common, the possession of the plaintiff or of the others was his, defendant’s, possession, and hence there could be no recovery against the defendant for the use of his own property. How it was found that such tenancy existed, or what the evidence of it before the court was, we are quite unable to discover. The bill of exceptions fails to show that any evidence of the kind was given, and our attention has been directed only to sections 20 to 23, inclusive, of the act of incorporation above referred to, and to the case of Clark v. Plummer, 31 Wis., 442. How it is to be inferred, in the absence of all evidence upon the subject, that the company plaintiff has not acquired the interest of the
Neither can it make any difference that the defendant is one of the associates or corporators named in the charter of the company plaintiff, or that he may be or is a stockholder, director or other officer of the company. The legal entity of the company is not affected by this circumstance, and it may in its distinct corporate capacity sue him in his capacity of an individual or natural person, which is also quite distinct and separate.
In every point of view, therefore, we are of opinion that the judgment of nonsuit was wrong, and that it should be reversed, and the cause remanded for a new trial.according to law.
By the Court. — It is so ordered.