Steele v. Schricker

Taylor, J. The learned counsel for the appellant assigns as errors: (1) That there was no proof given on the trial showing any conversion of the logs in question by the defendant at the time the action was commenced. (2) That — 139 — the court erred in admitting Blaisdell’s testimony as to the scale of the logs and the quantity thereof. (3) That the court erred in refusing to allow proof of title in a stranger. (4) That the court erred in refusing the testimony offered by the defendant to aid in the construction of the contract between Langley & Blaisdell and Newton. (5) That the court erred in refusing to submit proper questions to the jury as a special verdict. (6) That the verdict is not sufficient to sustain a judgment in favor of the plaintiff. Without giving any statement or even summary of the evidence tending to prove a conversion of the logs by the defendant, we think it was sufficient to sustain a verdict in the plaintiff’s favor upon that point, if he showed himself entitled to the possession at the time he commenced his action. The defendant not only took a conveyance of the logs from Newton in such form as to give him a right to the possession thereof if Newton had such right, but he put such transfer on record in the office prescribed by law for the record of all claims and titles to logs. This act was a declaration on his part that he made claim to the right of possession, at least, of these logs. When they were demanded of him, he did not disclaim any right to them; and after-wards, and pending the action, he sold them. We think this evidence was sufficient to go to the jury on the question of conversion at the time the action was commenced. See Smith v. Schulenberg, 34 Wis., 41. The exception to the parol evidence of Blaisdell, as to the number of feet of logs in controversy, we think was well taken, and should have been sustained by the court. The ■sealing and measuring of logs and lumber has been deemed of sufficient importance to those engaged in the business of lumbering to call for legislative regulation, and for the appointment of officers who are charged with the duty of making such scales and measurements and preserving records thereof. Their duties in this respect are defined in — 140 — sections 1734-1737, R. S. 1878. Section 1735 provides that “ each lumber inspector shall, in person or by deputy, at the request of any owner of logs, timber or lumber, after a scalement or measurement thereof, make a bill stating therein the number of logs, the number of feet, board measure, contained in such logs and lumber, and the number of feet, cubic, running or board measure, contained in said timber, and at whose request the same were scaled or measured, and to whom scaled or measured, a copy of which bill he shall enter upon the books of his office to be provided by him and kept for that purpose, with the marks as they occurred upon the logs. A correct bill of the same shall be given to such owner, with a certificate thereto attached that it is a true and correct bill, which bill, so certified, shall be presumptive evidence of the facts therein contained, and of the correctness of such scalement or measurement, in all courts, except in favor of the inspector who made the same.” It will be seen that the contract between Langley & Rlais-dell and Newton provided for scaling the logs in question in the manner prescribed by the statute; and the evidence given on the trial shows that such was made, and was probably delivered to Newton. There is perhaps, a legal presumption that the inspector who scaled the logs did his duty in this respect, and entered the scale in the books of his office, and1 furnished a properly certified bill to Newton, who appeared to be the owner of the logs so scaled. The legislature having provided that written evidence of the measurement of logs and lumber should be made by a public officer, and a record thereof preserved in a public office, and that a certified bill thereof, made by him and delivered to the-owner, should be presumptive evidence of the correctness of such scalement or measurement in all courts, except in favor of the person making the same, such written evidence, when it exists and is attainable, must be deemed the best evidence of the number of feet in the lot of logs so scaled and meas — 141 — ured. Certainly it is better evidence than the recollection, of an interested party, who did not make any measurement ■ himself, and testifies from Ms recollection as to the contents of the scale bills which came under his observation at the time the scale was made. ■ This question was considered by this court in the case of Fornette v. Carmichael, 41 Wis., 200; and it was there held that when it appeared that a scale of the logs had been made as provided by law, and such scale was in existence, it was the best evidence, and should be produced, or some sufficient reason shown why it could not be produced. Justice Lyok, in his opinion, speaks of the scale made in proper form as a written instrument, the contents of which cannot be shown by parol proof. The doctrine of that case is not questioned in the case of Tewksbury v. Schulenberg, 48 Wis., 577. In the latter case the scale of the logs in question was not made by a public officer, and it was held that where the scale was in fact made and entered into a scale book, which was in the possession of the opposite party, who had been notified to produce it and refused so to do, it was competent to prove the contents of the scale book by one who helped make the scale and had seen the entries made in the book. In the case at bar there was no proof made that the certified scale had been lost and that no record had been made thereof in the proper office; nor was Newton, in whose possession the original certified scale bills were presumed to be, required to produce the same, or subpoenaed to produce them on the trial. We are clearly of the opinion that there was no foundation laid for proving by parol the contents of the scale bills; and we are also of .the opinion that it is improper to give parol evidence of the quantity of the logs, in boai’d measure, by estimates made by men who had seen and examined them, when it .appears that a scale and measurement thereof has been made by an officer appointed for that purpose, unless it be further shown that no record of such scale has been made — 142 — as required by law, and no certified scale bill thereof is in existence, or that, if in existence, it is in the hands of the opposite party, who upon notice has refused to produce the same, or is in some other way out of the reach of the party offering such proof. As to the third assignment of error, we think the circuit court properly excluded the evidence offered by the defendant showing that Langley & Blaisdell were not the owners of the lands upon which the logs in question were cut, for two reasons: first, because the evidence that they did not own the lands from which the logs were cut would not prove that they were not the owners of the logs; and second, because the right to the possession of the logs by the defendant, if he had any such right, was derived from the said Langley & Blaisdell through Newton. Having obtained the possession of the logs in question from the same persons under whom the plaintiff claims, it is very clear that the defendant cannot question the title of the party under whom both parties claim, unless some third person having a better title has deprived the defendant of his possession derived from the plaintiff’s vendor. The question raised by this exception was ruled against the defendant by this court in the case of Weymouth v. Railway Co., 17 Wis., 550. The late learned Justice Paine, in his opinion in that case, says: “We think also that the court properly instructed the jury that if they found that the plaintiff was in possession of the land from which the wood was cut, and in possession of the wood, the defendant could not defeat a recovery by showing title to the land in Ogden, there being no offer ‘by the defendant to connect itself with such title. It is true, there are cases where it is stated generally that in trover the defendant may show title in a third person; but that should be understood as assuming that the defendant offers at the same time to connect himself with such title.” The cases cited by the learned counsel for the appellant, which hold that title in a — 143 — third person is a defense to the action, are all cases of re-plevin and not for conversion. The rule in replevin has always been different from that in trover or trespass de bonis. The circuit judge was clearly right in excluding the evidence of conversations between the parties before the execution of the written contract. Oral conversations had between the parties to a written contract cannot be received as explanatory of the writing. Such conversations do not come within the rule that “you may show the facts surrounding the parties at the time, and the situation in which they were placed, in order to interpret the meaning of what they say in their contract.” Professor Greenleaf says: “ Evidence which is calculated to explain the subject of an instrument is essentially different in its character from evidence of verbal communications respecting it.” The conversations between the parties previous to making the written contract are clearly verbal communications respecting it, and must be excluded as such. The questions asked and excluded were the following: “ "What was said between you and Blaisdell at $he time of making the contract, with reference to making advances of supplies on the T. diamond P. logs?” “ State fully the circumstances attending the making of the contract, which occurred at the time the contract was made.” This was not evidence which was calculated to explain the subject of the writing or aid in its interpretation, but was clearly intended to show what construction the parties put upon it at the time it was made, and is clearly inadmissible. As we have concluded that the judgment must be reversed because of the error in admitting the parol evidence as to the scale of the logs, it is unnecessary to consider the other objections to the record made by the learned counsel for the defendant, as they relate to matters which may not arise upon a re-trial. "Whether Newton’s mortgagee was entitled to hold the possession of the logs in question under the provisions of the — 144 — •contract between Langley & Blaisdell arid Newton, giving Newton the right to the possession and the right of sale to reimburse himself for any advances which he may have made to Langley & Blaisdell under the contract with them, does not seem to have been definitely passed upon by the •court below. In fact, it appears to have been doubtful whether any advances had been made on the contract by Newton at the time the action was commenced, in excess of what was then due to said Langley & Blaisdell upon the first mark of logs got out by them for Newton; and, for anything appearing upon the record, the jury may have found from the evidence that at the time the action was commenced ■nothing was due from Langley & Blaisdell to Newton for such advances, and so the defendant had no right to hold possession •under that clause in the contract. I am inclined to think that under the contract Newton would have no right to pledge or' mortgage the logs in question as security for a debt due from him, and especially to mortgage or pledge them for an ■amount in excess of the sum due to him for advances made under the contract, and that his doing so would be a conversion of the logs by him, and would confer no right of posses.sion upon his mortgagee as against Langley & Blaisdell or their vendee. But this question we do not decide definitely,,, .as we are unable to see that it was passed upon on the trial ■in the court below. The contract between Langley & Blaisdell and Newton was duly recorded in the proper inspector’s office, and so was notice to the defendant and all other persons of the interest which Newton had in the logs in question; and he -cannot claim to be a bona fide purchaser because the logs were marked with the recorded mark of Newton. He is chargeable with knowledge of the right of Langley & Blais--dell as to the logs in question, notwithstanding the recorded mark was Newton’s. See sec. 1739, E. S. 1878. By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.