LaChapelle v. Warehouse & Builders' Supply Co.

PiNNEY, J.. The questions in this case are, in the main, questions of fact, and there is evidence sufficient, in our judgment, to sustain the findings of the jury. 1. The defendant, the Warehouse <& Builders' Supply Company, was sued by that name only, and the- complaint was against that corporation “ as organized and existing under the laws of Minnesota,” and doing business as such in the •city of Superior. The judgment is against it as such corporation. There is nothing in the record indicative of a purpose or intention of suing the Wisconsin corporation of that name. The defendant, “ Warehouse Aa Builders' Supply Company," for answer to the complaint, denies all the allei gations of the complaint, except those expressly admitted, and then the defendant proceeds to claim that it was an entirely different person from the Minnesota corporation and makes a defense on that basis, and makes defenses at the same time, and in the opening part of the answer, against the claims set forth against the Minnesota corporation. The court seems to have considered that the defendant was a Minnesota corporation; and, finally, after quite a considerable mystification over this clever subtlety, the counsel for the defendant, in support of his title to the counterclaims set up, expressed the view that this court would reach the conclusion that the trial court “was right in considering the date of incorporation as immaterial, and that the two corporations were, for all practical purposes, the same.” We concur with counsel and with the trial court on this point, and think that both corporations represented and controlled the same rights and interests in Wisconsin, under organiza [524] tions in the respective states. We hold that the action and judgment was against the Minnesota corporation. The cedar, if converted at all, was converted before the Wisconsin corporation was organized. 2. There is sufficient evidence from which the jury might property find a conversion of the paving cedar, and by the Minnesota corporation defendant, doing business in Wisconsin. The question whether there was a conversion of the cedar was fairly submitted to the jury under instructions favorable to the defendant. Indeed, this was the principal question in the case, and, as there was conflicting evidence, this court will not disturb the finding of the jury. 3. There was no error in refusing the fourth, fifth, and eleventh requests on the part of the defendant to charge the jury. There is nothing to show that the plaintiff’s cedar was lost of misappropriated through any silence or fault on the part of the plaintiff, or that he knew or supposed that the defendant, or its officers, were ignorant of any inter-mixture of it with cedar belonging to the defendant or other parties. Its duty, as bailee, was a plain one, namely, to keep the property, as delivered on the dock, separate from all other property. If it failed to do so, and converted the property to its own use, it is certainly liable in damages. The court stated to the jury what would constitute a conversion, to which no exception was taken. It could not property, under the state of the evidence, say to the jury that there had been no conversion of the cedar. Even if the same kind of cedar remained in the yard, the plaintiff was not bound to take it as his own; but the uncontradicted evidence was that it was not of the same quality. There was no evidence to show that the plaintiff Avilfully or indiscriminately intermixed his cedar with that of the defendant or of others. The evidence shows clearly that whatever intermixture may have occurred, was through the acts of the defendant. [525] 4. The court did not rule that the defendant’s witness Schwallenbach could not testify what the market value of paving cedar was at the times mentioned. Inquiry in this respect was freely permitted. Paving cedar is an article of general merchandise, and the inquiry as to its market value is a practical method of ascertaining what it was worth. We think that it was proper to ask the witness what paving eedar was worth at the times named, but his evidence showed that he did not know of any demand for it for home use at Superior city or elsewhere, — he had not heard of any; that there was no paving being done in Superior city, and he did not know what its market value was. He had testified that he knew the prices for paving cedar during the years named, but the defendant’s counsel abstained from asking what such prices were. We do not think it can be said that the defendant was prejudiced by the rulings complained of. He did not know of any market value for the cedar, and the defendant got substantially the benefit of all he did know, except as to prices, which it might have had, presumably, if it had desired it. What paving cedar was worth for firewood was 'not a proper rule of damages for its conversion. We think that the rulings complained of present, in view of the facts and circumstances of the case, no reversible error. We do not think there is any reason for supposing that they injuriously affected the substantial rights of the defendant, or that the judgment should be reversed on account of these rulings. R. S. sec. 2829; Bosworth v. Tallman, 66 Wis. 22; Thorn v. Smith, 71 Wis. 18; Renier v. Dwelling House Ins. Co. 74 Wis. 89-99. 5. The evidence of Burke clearly showed that the plaintiff did not use the dock to land the cedar for Kiever & Burke, but that they had its use for that purpose, and that the plaintiff was not liable for the dockage thereon. The loss of the contract between them and the plaintiff was shown, and parol evidence was rightly admitted to show that they [526] were to pay such dockage, and the defendant had charged it to them, and not to the plaintiff. About these facts there was no conflict of evidence. The court left it to the jury to find whether there was cedar placed on the dock by the plaintiff, other than that in issue, and other than the Kiever & Burke, efc., cedar, and, if so, to allow the defendant fifty cents per cord thereon, and interest for two years at six percent.; but the jury found against the defendant on this claim. The question as to what amount was due for the-dockage on the cedar in dispute was rightly left to the jury upon the evidence. 6. The only evidence as to the value of the paving cedar-was that it was of the value of $10 per cord. The court rightly told the jury to allow that sum for the amount of paving cedar they should find had been converted, with interest at six per cent, for five months, being from the time-the action was commenced. We do not find that there is. any reversible error in the record. By the Court.— The judgment of the superior court is affirmed.