Root v. Bonnema

Cole, J. The court held that it was not necessary, in •order to entitle^the plaintiff to recover, that he must show ' a demand for the property before commencement of the suit. In this we think the court erred. The plaintiff derived title 543 to a considerable portion of tbe lumber through the bill of sale appearing in the case. That hill of sale conveys to him “ all lumber of every description, wherever the same may be, manufactured at the saw mill occupied by Oepke Bonnema,” etc., from logs belonging to either of the vendors. “ Also all the logs belonging to either or any of them in Black river or near its banks, within three miles of the mill.” Row the object of the suit in part was, to recover this lumber in possessession of the defendant. Manifestly there should be a demand for this property by the plaintiff, before suit brought. After he became the owner of the property, there was no refusal on the part of the defendant to restore the lumber to him, nor anything tantamount to a refusal. Possibly the defendant would have restored the lumber to him, had he given him an opportunity to do so. At all events,, it should appear that the defendant exercised some control over the property incompatible with the plaintiff’s rights, after the latter became the owner. Hence the necessity that a demand should have been made before the commencement of the action. The circuit court specifically instructed the jury that no such demand was necessary. See Hall v. Robinson, 2 Comstock, 293; Robinson v. Weeks, 6 How. Pr. R., 161; Norris v. The Milwaukee Dock Co., 21 Wis., 130. The court, both in the general charge and in the special instructions, laid down the law very clearly and correctly in regard to the willful confusion of goods. It was in entire harmony with the doctrine of this court as announced in Jenkins v. Steanka, 19 Wis., 126. Mr. Justice DowneR, in that case, says: “ The law, as we think, is, that if Wright willfully or indiscriminately intermixed the lumber sawed from the logs of the plaintiffs with his own lumber, so that it could not be distinguished, and the lumber so mixed was of different qualities or value, then the plaintiff would be 544 entitled to liold the whole.” And this is substantially the doctrine laid down in Wright v. Smith, 20 Maine, 287, as well as by the authorities cited in the opinion. But, for the error first above noticed, we think there must be a new trial. By the Court. — The judgment of the circuit court is reversed, and a new trial awarded.