Anderson v. Fetzer

Cassoday, J. It is claimed that the trial court found a balance due the plaintiff on the counterclaim of the defendants, and not upon the plaintiff’s cause of action. The [565] complaint was for the proceeds of cedar posts, as stated.. The counterclaims were for advances and payments made on account of the ties and fence posts indiscriminately. The trial court found, in effect, that the $900 was advanced upon the ties, and the $700 on ties and posts, and that the proceeds of the ties and posts ■ received by the defendants from the plaintiff amounted, in the aggregate, to $1,773.28, or $173.28 in excess of the moneys so advanced. We cannot hold that the mere form of the issues precluded the plaintiff from recovering the true balance in his favor on account of both ties and posts, since it was considerably less than the amount claimed in the complaint. The principal contention of the defendants is that the evidence fails to support the,seventh finding of fact, as to the number of “good ties” purchased by the plaintiff and delivered to the defendants under the written contract set forth. It is claimed that a large per' cent, of the ties therein mentioned were culls, or rejected, and did not pass inspection in Chicago, where it was understood they were to be sold and were in fact sold by ¥m. Ripley & Sons, as agents for and on account of the defendants. The evidence principally relied upon by the defendants to prove that a large per cent, of the ties thus delivered were not “good cedar ties,” within the meaning of the contract, is a written statement, made by Wm. Ripley & Sons, of a cargo of such ties therein said to have arrived in Chicago April 18, 1887, by the vessel “ Thomas H. Smith,” on account of the defendants, and another such statement made by them of ties therein said to have arrived July 15, 1887, by the vessel “Eliza Ray,” on account of the defendants. Neither of these statements was sworn to or verified in any way. Neither of the firm of Wm. Ripley & Sons, nor any one in their employ, or any other person, testified to the facts contained in either of those statements. The written contract contains nothing which [566] could make sucli statements evidence. Suck statements made by agents of tke defendants were no more admissible in their behalf than their own statements. They were mere hearsay, and were hence properly rejected. The defendants admitted that there was no standard for good ties in Chicago; that whether a given quantity of ties passed inspection there or not depended very much upon the supply and demand; that at times perfectly good ties were classed as inferior in that market, and at other times the reverse; that a good tie in Door county meant a tie of certain dimensions and sound. Their proofs fail to show that the ties delivered fell below that standard. They 'were not kept separately in Chicago, but piled in with others. The written contract states that there were 3,625 on the dock at the time it was made. The defendants saw them at the time. There is evidence to the effect that when the advances were made, March 18, 1887, there were some 6,000 ties on the dock, open to the inspection of the defendants; that all the bad ties were thrown out before shipment; and that the plaintiff delivered the number of good ties found by the court. Upon the evidence in the record, we would not be justified in disturbing the seventh, nor any, of the findings of the trial court.' By the Oourt.— The judgment of the circuit court is affirmed.