Roberts v. Francis

SiebecKee, J. Error is assigned upon the action of the court in refusing to enforce its order requiring the production of the correspondence between plaintiff and his brother, Natban Roberts, from March 9, 1903, to the commencement of the action. As shown in the statement of facts, this order was obtained by defendant on October 8, 1903, and was served on plaintiff’s counsel the same day. It required the production of the correspondence at the trial, and that it be filed with the clerk of the court between the hours of nine o’clock and four o’clock of the following day. Plaintiff’s counsel filed his affidavit with the court on October 9th, admitting service of the order, and stating that he had no such correspondence in his possession, nor any knowledge concerning it, and that plaintiff was not then within the state of Wisconsin, but was in the state of Minnesota, and for these reasons he could not comply with the order. The order was not served on plaint [83] iff; lie 'was first informed of its existence while testifying upon the trial. Defendant examined plaintiff fully as to the contents of this correspondence. Under these circumstances defendant was not in a position to insist upon the production of the correspondence, and in default thereof that plaintiff be punished. It rested in the sound discretion of the trial court to determine whether plaintiff’s conduct merited the imposition of any penalty. The court held that the order ought not to be enforced, as requested. We cannot say that such action was an abuse of its discretion under se.c. 4183, Stats. 1898. Treleven v. N. P. R. Co. 89 Wis. 598, 62 N. W. 536. Appellant insists that the question of the title and ownership of the horse should have been submitted to the jury, for the reason that the proof of title rested solely on plaintiff’s testimony. It is argued that this question should have been submitted to the jury under the evidence, for the reasons that he is an interested party, and that his testimony had been shown to be false in material respects and impeached by material facts and circumstances. An examination of the evidence discloses no direct or circumstantial proof conflicting with plaintiff’s claim that he is the owner of the horse in question, nor is his evidence the only proof on the subject. Uathan Roberts, who testified in behalf of the defendant, made no claim or assertion to ownership of the horse. His testimony pertaining to the transactions between himself and plaintiff concerning this horse tends to corroborate plaintiff’s .claim of title. It is true, plaintiff’s evidence is that of an interested party, but it appears to give a detailed and consistent narrative of all the material facts, without evasion, and it does not furnish indications of improbability or unreliability. The fact that Hathan Roberts had possession of this and other horses is, under the circumstances shown, in no way inconsistent with plaintiff’s ownership and Mathan’s possession for the purposes 'claimed. It is asserted that it clearly appeared that he testified [84] falsely concerning tire contents of the correspondence, but Ave-find no reliable ground for this claim. The fact that the witness Green testified that he told Nathan Roberts Avhat to write to plaintiff in the letter of March 10, 1903, is not of such probative force as to warrant the conclusion that plaintiff’s testimony of the contents is false, in vieiv of the fact that, it appears that Mr. Green does not know of his own knowledge what were the contents of this letter. Other instances cited to our attention as impeaching plaintiff have been examined, and Ave find nothing which would justify the trial court and the jury in disregarding the testimony of plaintiff,, in passing upon these issues, nor Avas there such conflict in the proof of title as to present any other reasonable inference -than that plaintiff is the true OAvner of the horse. There is no evidence that, the sale by Nathan Roberts to-the Westfield Importing Company Avas within his actual authority, but it is contended that it was within his authority, as plaintiff’s agent, under the facts and circumstances of the-case. It is argued that plaintiff’s failure to produce the correspondence amounts to a -wilful suppression of documentary OAÚdence, and tends to sIioav such authority. As Ave have stated, the record is bare of anything showing that plaintiff suppressed this oAÚdcnce. His explanation as to why he did not produce it is reasonable and entitled to credence. Nor does it lie with defendant to assert this claim, in vieAv of the procedure taken by him under the statute, as above indicated, and the course adopted by him upon the trial in seeking to show the contents of these documents by plaintiff’s evidence, Avhich he apparently gave with the utmost freedom and to the-best of his recollection. Under these circumstances, no presumption will be indulged that the contents of the letters-Avould furnish proof against the claims of plaintiff. It is insisted, if plaintiff gave no actual authority to sell these horses, that Nathan had an implied authority to dispose of them as he did. This is predicated upon the facts. [85] .showing that tbe horses were in the possession of Nathan for a number of years; that he handled and treated them and appeared to exercise control over them as' owner. While the facts of possession and control of a principal’s property by the agent may be evidence tending to show authority to sell, there is no implication that he is authorized to deal with it in any other way. Such proof is never made the basis of a presumption that the agent might exchange the property of his principal, and a transferee claiming through such a transaction cannot resist recovery of it by the true owner. Mechanics’ Bank v. N. Y. & N. H. R. Co. 13 N. Y. 599, 633; Wheeler & W. Mfg. Co. v. Givan, 65 Mo. 89; Trudo v. Anderson, 10 Mich. 357; McCreary v. Gaines, 55 Tex. 485. The claim of ratification cannot arise, for the reason, as heretofore indicated, that plaintiff had no knowledge of this transfer until after he arrived in this state on April 20, 1903, and thereafter he persistently repudiated the trade made by his brother. It remains to ascertain whether plaintiff could maintain this action without an actual return of .the horse received by his brother from the Westfield Importing Company. When he notified Mr. Hanan, the representative of the company, that he was the owner of this horse, and demanded its return, he was informed by the company’s representative that it refused to surrender the property, and would hold and retain it as owner under the trade with Nathan Boberts, notwithstanding the claim he made as to the true owner. This claim of the company has been consistently maintained to the present. The defendant simply acted for the company. This attitude of the defense clearly shows that the company, through its representative, refused to receive back the horses they had parted with upon any condition, and an attempt to make actual return of the horse delivered to Nathan Boberts by the company would have been an idle and useless ceremony. Under these circumstances the plaintiff is relieved [86] from tbe necessity of actually tendering tbe return of sucb horse before commencing this action. We find no grounds which preclude plaintiff from prosecuting his suit to judgment. By the Gourt. — Judgment affirmed.