St. Paul Boom Co. v. Kemp

SnsBECKER, J. Exception is urged to tbe ruling permitting a witness to read from a memorandum while testifying. One of tbe plaintiff’s witnesses testified that be made memo-randa of log marks, as be found them on tbe logs, in a notebook which be produced, and tbe court thereupon permitted him to read tbe entries so made. It is urged that this does not furnish a sufficient foundation to make bis evidence competent. Tbe court evidently regarded tbe witness’s statement as equivalent to tbe assertion that be bad made tbe entries and that they were correctly made. We think this significance can properly be ascribed to tbe answer of tbe witness. Under ■sucb circumstances it was proper to allow tbe witness to read from tbe entries made by him. Manning v. School Dist. No. 6, 124 Wis. 84, 102 N. W. 356. Tbe same witness was also permitted to give bis opinion of tbe market value of tbe logs in question. I't appears that be bad been employed in tbe plaintiff’s logging business for a number of years, and bad learned tbe general market value of pine lumber, and that prior to testifying be bad learned of market values from reported prices and from sales made by him. ITe was sufficiently informed to be qualified to speak on this subject. Error is alleged upon the ground that tbe court permitted Mr. Chute, plaintiff’s manager, secretary, and treasurer, to testify concerning tbe filing of log marks under tbe laws of tbe ■state of Minnesota, tbe custom of boom companies in handling — 143 — stray marked logs, and as to bis knowledge of tbe ownership of tbe logs bearing tbe marks in question. As stated by appellant, tbe testimony, if relevant, was material to tbe question of tbe ownership of the lumber in controversy. Counsel assumes that, under tbe statute of Minnesota, a person who has cut logs should, before marking them, cause a copy of tbe adopted log mark to be recorded in tbe surveyor general’s office, and that when so recorded tbe log mark is deemed to be tbe property of such person, and such mark is prima facie proof of ownership to tbe logs bearing it. It is contended that, since tbe lumber was cut within tbe territory wherein this law applies, it was error to permit tbe witness to testify as to tbe marks on tbe logs, and as to bis knowledge of tbe ones used by certain parties, without first showing that they were recorded under tbe Minnesota law. Tbe trial court received tbe evidence to identify the property and to show ownership upon tbe ground that it appeared that tbe witness bad personal knowledge that tbe log marks testified to by him bad been and were in fact used by various parties doing a logging business upon tbe Mississippi river, and that it was competent evidence for those purposes, though there was no proof showing that they bad been recorded as prescribed by tbe Minnesota statute. No valid reason is presented impeaching tbe grounds of tbe ruling of the court and rendering tbe evidence incompetent. Tbe witness’s knowledge on tbe subject clearly showed that bis evidence was material and competent to establish tbe ownership of tbe logs in question. At tbe conclusion of plaintiff’s testimony appellant moved for a nonsuit upon tbe ground that tbe evidence adduced failed to identify-tbe lumber seized by-tbe plaintiff under tbe writ as lumber manufactured out of tbe logs which respondent claimed were wrongfully taken from its possession and detained by defendant, and that there was no evidence tending to show title or right of possession to tbe logs in respondent. Tbe evidence adduced tended to show that respondent boom company was — 144 — engaged in gathering stray logs in the Mississippi river and its connecting waters; that its employees bad gathered the logs in dispute, brailed them, and left them in possession of two of its agents; and that they were wrongfully dispossessed by Hackett, of whom appellant purchased them. It also appeared that the boom company was engaged in this business by and with the consent of the parties who had lost the logs and of Mr. Chute, to whom title had been conveyed by the original owners for the purpose of gathering them together after their escape from .the original owners. These facts and circumstances furnished sufficient ground for submitting to the jury the question whether respondent was in lawful possession of the logs and had a right to reclaim them under the writ of re-plevin. The findings of the jury upon these questions practically rest upon the evidence which had been received before the motion for a nonsuit was made. We think that the evidence is sufficient to support the finding, and that the court properly denied the motion for a nonsuit. It is contended that the court erred in striking out the jury’s negative answer to question No. 4 of the special verdict and in answering it in the affirmative. By this answer the jury found that appellant did not wilfully and indiscriminately intermix these logs and the lumber he manufactured out of them with the logs and lumber owned by him. It is apparent from the opinion of the trial, court that it concluded that the fact was undisputed in the case. It appeared that Hackett had no title to or interest in the logs when he sold them to appellant; that appellant had no knowledge or information to the effect that Hackett was a dealer in logs or lumber or that he was in any way engaged in the lumber business; and that appellant purchased the brail of logs for the small sum of $19.50, when he well knew that they were worth a much larger sum in the market. The jury’s findings that he had good reason to believe at the time he purchased the logs that Hackett had secured possession of them wrongfully, that he had been in — 145 — formed on the day of purchase that they had been wrongfully and forcibly taken from the boom company, and that it claimed them as its property under arrangements with the original owners, and warned and notifiód-him not to manufacture them into lumber, were all well supported by the evidence. It is significant, as bearing on this subject, that appellant refused to identify the lumber or to give the amount manufactured by him out of the logs, and that he offered no explanation, and made no claim that the lumber was so intermingled with other lumber in his yard. It also appeared in evidence that lumber bearing the log marks was intermingled with other lumber in piles, which, under the finding of the jury, must have contained a much larger quantity than the logs yielded. This state of the evidence left no basis for a finding that there was no intentional confusion of this lumber with that of appellant, and justifies the action of the trial court in changing the. answer to question 4. "When the verdict had been so framed the court awarded; judgment in respondent’s favor.for the recovery of the logs- and lumber seized by the officer, and for costs. It is contended' that this is error. The jury found that the brail of logs contained 8,000 feet of manufactured lumber, that the total value.' of the logs was $120, and that the quantity recovered by respondent was worth $30, which, on the basis of valuation: found by the jury, would be one fourth of the whole amount.;; thus showing that three fourths of the logs had been manufac1-tured into lumber, which, upon this calculation, amounted to 6,000 feet. The officer seized 20,000 feet of the manufactured lumber, or 14,000 feet in excess of the amount the logs yielded. The trial court awarded judgment for the recovery of the whole amount seized by the officer, upon the ground that a wrongful confusion of goods operates as. a forfeiture of the interest of the wrongdoer in all of the goods so intermixed! To operate such a forfeiture it must appear that the lumber manm factured out of the respondent’s logs and that of appellant with — 146 — which it was mixed were so different in description, quality, and value that the whole mass could not be ratably apportioned in proportion to the quantities contributed to the whole mass by the original owners. The evidence does not tend to show that there was a difference in description, quality, and value of the lumber so mixed. There is nothing to show that such an apportionment could not be made, and that respondent would not be fully compensated for its damage by having its proportion of the whole mass restored to it. The legal principle governing such a situation is stated by Judge Cooley in terms as follows: “Even if the commingling were malicious or fraudulent, a rule which would take from the wrongdoer the whole, when to restore the other his proportion would do him full justice, would be a rule wholly out of harmony with the general rules of civil remedy, not only because it would award to one party a redress beyond his loss, but also because it would compel the other party to pay, not damages, but a penalty.” Cooley, Torts, 53. For cases on this subject, see Eldred v. Oconto Co. 33 Wis. 133; Jenkins v. Steanka, 19 Wis. 126; Starke v. Paine, 85 Wis. 633, 55 N. W. 185; Lupton v. White, 15 .Ves. Jr. 432; 6 Am. & Eng. Ency. of Law (2d ed.) 595-597; 8 Cyc. 571. We are constrained to hold that the judgment is erroneous, in that it awarded to respondent the right to hold and retain •the logs and 20,000 feet of lumber seized by the officer under Ihe writ of replevin. Respondent was entitled to the logs .■seized, and to its full proportion out of the entire quantity of lumber seized, namely, 6,000 feet, and the costs of the action; and appellant was entitled to a return of the excess of the lumber so seized, or, if the lumber could not be returned, to its value, without any damages for the seizure of such excess under the writ of replevin. Appellant’s printed case fails to comply with Rule VIII of this court in that it contains duplication of record matters, and a failure to properly abridge the record to the extent — 147 — necessary for tbe proper presentation, of tbe questions before tliis court. Eor these reasons we limit appellant’s taxation of costs for tbe expense of printing tbe case to eighty-five pages. By the Court. — Tbe judgment of tbe circuit court is hereby reversed, and tbe cause is remanded with directions to enter judgment according to this opinion; appellant to recover costs on this appeal.