Stubbings v. Curtis

Winslow, J. The plaintiff sold to Leahy & Beebe a quantity of standing pine, with the right to cut and manufacture the same, but reserving title to the logs and lumber manufactured therefrom until the purchase price was fully paid. Leahy & Beebe cut the pine, marked it with their own mark, banked it on Tamarack river, and sold a part of it to the defendant Curtis Bros. & Co., under a written contract that they (Leahy & Beebe) should manufacture it into lumber and pile it as directed by Curtis Bros. & Co. This was done, and the same was delivered and fully paid for by the defendants; but it appears that Leahy & Beebe had never fully paid the plaintiff for the pine, and the plaintiff therefore claims to recover of the defendants the value of the lumber, on the ground that title had never passed to Leahy & Beebe. The defendants claim that the plaintiff was estopped from enforcing his reserved title as against them, and the question whether such an estoppel was shown by the evidence was the question sharply litigated upon the trial. The legal principles applicable to the question litigated have been so recently discussed and stated in the case of Mississippi River L. Co. v. Miller, ante, p. 77, that it is unnecessary to repeat them here. The facts relied upon to prove an estoppel in that case were almost identical with the facts found by the jury in the present case, except that it appears more clearly in the present case that the plaintiff contemplated that his vendee was to manufacture the logs and sell the lumber therefrom than it did in the case cited. Within the principles there stated, an estoppel clearly appears in the present case, upon the facts found by the [312] jury. Such being the case, the only questions to be considered are whether prejudicial errors occurred upon the trial. It is claimed that it was error to exclude evidence showing that the contract of sale made by Stubbmgs to Leahy & Beebe was filed in the office of the city cleric at Wausau. As this, was a contract for the sale of real estate, it was not entitled to be filed. ' Such filing, if made, was an act which protected no legal right and constituted no notice to any one; and, as there was no proof that any of the defendants had actual knowledge of the fact, it seems clear that the proof offered was immaterial. One Cline, the foreman of Leahy & Beebe’s mill, was examined by the defendants, and gave testimony as to the sale of the lumber to Curtis, and also as to a conversation with the plaintiff at Wausau while Curtis was removing the lumber, in which he told Stubbings of the sale to Curtis. Upon cross-examination the plaintiff endeavored to prove by the witness certain letters which passed between him and the plaintiff as to the amount of timber remaining uncut on the Stubbings lands in the fall of 1890. Upon objection the letters were ruled out as not proper cross-examination. This ruling seems to have been strictly correct. The witness was not a party to the action, and the cross-examination attempted did not relate to. matters gone into on direct examination. Sullivan v. Collins, 107 Wis. 291. Furthermore, the letters were all introduced in evidence by the plaintiff later in the trial. A large number of instructions were asked by the plaintiff and refused, but we are relieved from any examination of them because no exceptions to the refusal-are preserved in the bill of exceptions. While some exceptions were'taken to certain instructions which were given, we have discovered none which was erroneous or deserves detailed discussion. By the Court.— Judgment affirmed. Bardeem, J., took no part.