Conklin v. Parsons

Whiton, J. The judgment rendered in this case by the circuit court of Fond du Lac county, must be affirmed, although we should be of the opinion that the court before whom the cause was tried erred in the instructions which it gave the jury. The bill of exceptions shows that the suit was brought by jParsons against Gonklin to recover the difference in value of certain lands which Gonklin had agreed to pay to Parsons. On the trial Gonklin offered to set off the value of certain rails, which he had placed along the boundary line of the land which he had conveyed to Parsons previously to the conveyance, and which were not laid up into a fence, but which had been placed on the line for the purpose of building the fence. The evidence to prove the set-off was objected to by the attorney of Parsons, but the objection was overruled by the court and [267] the evidence admitted. This decision we think erroneous. There was no evidence of a sale of the rails to Parsons, unless they passed by the conveyance of the land, and the right of Oonlclin to prove the set-off was claimed solely on the ground that there had been a conversón of them by Parsons. Without deciding the question whether a plaintiff, under the circumstances, could waive the tort and sue in assumpsit for the value of the rails, we think that our statute regulating set-ofis will not permit a defendant to set off a demand of this nature. Eev. Stat. 278. The statute allows a defendant to set off a demand for goods sold ; and we think the better construction of it to be, that he may set off such a demand where there has been an actual sale, and not, as in this case, a mere conversion of the property. The bill of exceptions further shows that the court instructed the jury that the rails passed by the conveyance from Oonlclin to Parsons as a part of the freehold, and directed the jury to find for the plaintiff Parsons, and a verdict was rendered according to the instructions. It is clear that the instructions given to the jury corrected the error committed, in admitting the evidence to prove the set-off; and it is equally clear that the judgment must be affirmed, although the instructions given to the jury were erroneous, for the reason that the only defense which Oonlclin interposed to prevent Parsons from recovering was the set-off, which, as we have seen, could not avail him. But we are by no means satisfied that the instructions were wrong. We have been referred to no case which is exactly parallel to this, and can find none ; but the better opinion, we think, is, that where rails have been placed along- the line of an intended fence, for the purpose of being laid into the fence, though not actually applied to that use, they pass by a deed of the land, there having been a manifest appropriation to the use of the land. Judgment affirmed.