Gregory v. Rosenkrans

Cassoday, J. The striking out of that portion of the answer wherein the defendant attempted to allege title in himself to the crop of ice harvested in January and February, 1885, under and by virtue of the foreclosure and sale mentioned in the foregoing statement, was the logical result of the decision of this court in this case on the former appeal. 12 Wis. 220. It was there held that “ a mortgagee and purchaser on foreclosure sale of ice-houses, and of the right to cut ice from a pond, does not acquire title to ice cut and stored in the ice-houses by a lessee of the mortgagor prior to the foreclosure sale.” The reasons for such holding, given by Mr. Justice Oetou on that appeal, need not be here repeated. It is true there was a deficiency on that foreclosure and sale, but the defendant did not acquire thereon, by execution levy or otherwise, any specific lien on the ice in question; and the answer can in no sense be regarded as a creditors’ bill, under sec. 3029, R. S. This being so, and the plaintiff having proved an apparently good legal title to the ice, the defendant, as such mere creditor, is in no position to attack the validity of the [455] plaintiff’s title on the ground of fraud or otherwise. Manson v. Phoenix Ins. Co. 64 Wis. 26; Ullman v. Duncan, ante, p. 213. On the trial, the plaintiff was examined as a witness in his own behalf, and testified in effect to the agreement made between him and Atkins in December, 1884, whereby he obtained the right to harvest the ice in question and acquire the title thereto, and, among other things, that a written contract embodying such agreement was drawn up and signed by him and Atkins, The defendant thereupon moved to strike out such parol testimony on the ground that the writing was the best evidence. The plaintiff was then further examined as to the absence and whereabouts of such writing, and its contents. Subsequently, the plaintiff’s counsel produced a writing signed by the plaintiff and Atkins January 11, 1885, solely relating to the amount due from the latter to the former. The plaintiff thereupon identified the writing so produced as the one mentioned, and as the only writing ever signed by him and Atkins, but which did not embody the agreement which he had orally testified as having been made by him and Atkins. It is obvious, from the plaintiff’s whole testimony, that he' was simply mistaken when he swore that his agreement with Atkins about harvesting the ice was in writing. He had manifestly confounded that agreement with the writing mentioned. However erroneous may have been the refusal to strike out the oral testimony when made, yet we think it was cured and rendered immaterial, by the subsequent explanations made by the witness. We perceive no error in allowing the station agent to testify as to the number of car-loads of ice shipped by the defendant from Palmyra in September, 1886, nor as to the amount contained in each car, as appeared from the books of the railway company. True, such testimony did not [456] purport to give the exact quantity so shipped, hut it tended to prove such quantity, and was, as we think, admissible. The learned counsel for the defendant contends that the conversión of the ice took place, if at all, at Palmyra, about March 19, 1886, and hence that it was error to allow proof of its value in Milwaukee in September, 1886. But the proof thus admitted was merely to aid in determining the value at Palmyra at the time of the conversion, and for that purpose it was admissible. Lathers v. Wyman, 76 Wis. 616. The court in effect charged the jury that the measure of damages was the value of the ice at the time of the conversion in Palmyra in March, 1886; that if it was then worthless the plaintiff could only recover nominal damages; that if it thereafter increased in value the plaintiff was not entitled to any benefit by reason of such increase. The admission of testimony as to the quality and value of ice for the previous season is too remote and insignificant to be regarded as reversible error. The charge of the court covered all phases of the case, and fairly presented to the jury all the controverted issues of fact, and the verdict in favor of the plaintiff is sustained by the evidence. The other questions discussed by counsel have either been covered by what has already been said, or, in effect, determined on the former appeal. By the Court.— The judgment of the circuit court is affirmed.