Taylor v. Tigerton Lumber Co.

Dodge, J. Tbe trial of this case, as also tbe record in this court, is very confused and complicated. Tbe errors assigned are forty-seven in number and go to multitudinous details of tbe trial. Tbe situation would perhaps be simplified by a brief statement of tbe issues as we extract them from this record. Those issues are: Eirst, did tbe plaintiffs purchase of George McNinch, for agreed price, namely, a carload of feed, certain ascertained logs cut by him on bis own land, or did they sell that carload of feed upon tbe credit of Peters & McNinch? -Second, if there was such purchase of tbe logs, was there a delivery sufficient as between tbe parties to transfer title? Third, was there a conversion of logs by tbe defendant ? And, fourth, tbe value of plaintiffs’ logs taken by tbe defendant. We do1 not discover any question of actual fraud if tbe first issue be resolved in favor of tbe plaintiffs’ theory of a sale. There is no showing of insolvency on tbe part of George McNinch or even of the firm of Peters & McNinch. If a sale was made at all it was made for a presently paid consideration, tbe adequacy of which is not questioned, and there is no showing that at that time there was any contemplation of sale of the logs to the defendant or any one else. Hence the second issue is as above stated, and does not involve either the publicity of delivery or continuance of possession, absence of which by sec. 2310, Stats. (1898), is made presumptive evidence of fraud. Missinskie v. McMurdo, 107 Wis. 578, 83 N. W. 758; George Walter B. Co. v. Lockery, post, p. 81, 114 N. W. 120. Any such presumption is overcome beyond dispute. There was certainly some evidence on each of these issues sufficient [28] to go to the jury. We therefore turn to such of the assignments of error as seem to require consideration. 1. A large number of questions were propounded to plaintiffs on cross-examination, and to Peters and McNinch, tending to show that in subsequent dealings between those parties one or other of the plaintiffs treated the price of the carload of feed as a charge against and indebtedness of Peters •& McNinch, substantially all of which was excluded. So far as the general purpose of that testimony was concerned it was clearly admissible. Plaintiffs having claimed that they had delivered the carload of feed at an agreed price for certain specified property purchased of George McNinch, it was material to show that they had at other times treated it inconsistently, for that would not only impugn the credibility of their testimony, but would stand as admission on their part that they had not made the bargain upon which their title rested, and the exclusion of evidence of such inconsistent conduct from consideration by the jury, we have no doubt, tended to prejudice the defendant. The only doubt in holding these rulings error necessitating reversal is whether it did not appear to the trial court that the only act of plaintiffs ■of this character consisted in delivering a written statement of account, the contents of which is not disclosed, but which defendant claims to have contained this car of feed as one •of the items charged against Peters & McNinch. If that were so, it probably would not be error to exclude an attempt to prove by parol the contents of that writing without laying foundation, for the writing itself was the best evidence of what it contained. We are in much doubt whether this situation existed. There were questions broad enough to call for other acts on the part of the plaintiffs which witnesses were not allowed to answer. We may, however, forego the ultimate conclusion as to whether these rulings would necessitate reversal, since that must result upon other grounds, and we have probably said enough to indicate the course which [29] should have been pursued with reference to any competent, evidence of the tendency claimed for this. 2. Another class of excluded questions sought to show offers by plaintiffs to accept pay for the carload of feed, thus indicating, as defendant claims, that they then treated it as indebtedness. Such offers occurred in a negotiation between the plaintiffs, the defendant, and Peters & McUineh with reference to compromise of the controversy involved in this very action, and, of course, so far as they formed a part of such-negotiation were properly excluded.- Johnson v. Wilson, 1 Pin. 65, 70; State Bank v. Dutton., 11 Wis. 371; Richards v. Noyes, 44 Wis. 609; Gibbon v. Hughes, 76 Wis. 409, 411, 45 N. W. 538. 3. Another class of excluded evidence consisted in inquiries as to whether the plaintiffs advised or forced the bankruptcy of Peters & MeUinch some months after the alleged conversion of the logs. As to this we can see no relevancy whatever, and think it properly excluded. Questions also as to whether the trustee in bankruptcy commenced a suit against the defendant to recover some of these same logs, and as to the conduct and result of that suit, could have no relevancy to the present controversy. However, another set of questions inquired whether the plaintiffs, being creditors of Peters & McUinch, did not advise and solicit the trustee in bankruptcy to institute such suit. Such questions were all excluded. We cannot escape the conclusion that in these rulings was prejudicial error. It was conduct by plaintiffs themselves inconsistent with the ownership of the disputed logs and bore upon their credibility as witnesses in asserting-the transaction of their purchase, and also might be deemed an admission that they had no title. The jury were entitled to be put in possession of such conduct and to give it such weight as to them seemed right, and they might have deduced therefrom a conclusion adverse to the plaintiffs. 4. Certain bdoks of the plaintiffs were excluded because [30] the court was satisfied that they contained no charges having any reference to the car of feed or of the transactions here involved. Being so satisfied, the court was of course right in its ruling. Whether he was right in accepting plaintiffs’ mere testimony to that effect, as defendant claims he did, or should have made an examination of the hooks himself, was largely matter of discretion, and the record is too confused, as to what means were taken to convince the court of the absence of relevant entries, to warrant conclusion of abuse of discretion. Much other cross-examination excluded- by rulings now attacked was so nearly mere repetition in a trial quite unduly protracted that we think its exclusion was fairly within the discretion of the trial court. 5. Numerous assignments of error are based upon admission, over objection, of evidence of defendant’s acts in hauling away and appropriating to its own use certain of the logs in question after the action was commenced. In this we discover no error. The defendant, concededly, had asserted dominion and control over the so-called George McNinch logs, and, verbally at least, excluded the plaintiffs therefrom before the suit was commenced. Its subsequent conduct in appropriating these logs to its own use was admissible, if at all necessary, as giving color to such prior acts. However, we do not deem any such ruling at all material on this appeal, for the defendant’s own testimony seems to us to establish conclusively a conversion of at least the George Mc-Ninch logs before the commencement of the action, if they belonged to plaintiffs. ■ With full knowledge that the plaintiffs claimed them, the defendant placed its regular mark upon them over that of the plaintiffs ánd notified the latter not to touch them under threat of legal proceedings. These acts clearly constituted an exercise of dominion over the logs adverse to the plaintiffs, and a purpose to that effect is rendered unquestionable by the fact that the defendant stands in this suit asserting that it did then own the logs and took them [31] as owner. Tbe same reasons lead ns to consider nonprejudicial an instruction that defendant’s acts as testified to by the plaintiffs constituted conversion instead of mere evidence of conversion. The fact that the defendant intentionally appropriated the logs as its own and excluded the plaintiffs therefrom, with knowledge of their claim, before suit, is admitted, and this was conversion if the logs belonged to the plaintiffs. Cernahan v. Chrisler, 107 Wis. 645, 83 N. W. 778; Lucas v. Sheridan, 124 Wis. 567, 102 N. W. 1077; Seivert v. Galvin, 133 Wis. 391, 113 N. W. 680. Other assignments of error are either so immaterial to the result or so induced by the peculiar events of the trial as not to be likely of recurrence that we may forego discussion of them here. Eor the errors above mentioned in exclusion of evidence the judgment must be reversed. By the Gourt. — Judgment reversed, and cause remanded for a new trial.