Day v. Gumaer

50 N.W. 182, 80 Wis. 362, 1891 Wisc. LEXIS 210

• Court: Wisconsin Supreme Court
• Decided: October 20, 1891
• Status: Published

Opinion

LyoN, J.

Two questions raised by the pleadings were litigated on the trial. These are: (1) Did defendants warrant the accuracy of Burns’ scale of the logs? and, if so, (2) Was any shortage proved ? The jury answered both of these questions in the affirmative, else they could not have found for plaintiffs. As to the first question, the learned counsel for defendants conceded in his argument that the testimony was sufficient to support a finding that the warranty was made as claimed by plaintiffs. This concession was advisedly made, for there can be no doubt the testimony fully supports such finding.

The jury assessed damages at $4,539. They were instructed, if they found for plaintiffs, to allow interest at seven per cent, on damages from the time plaintiffs demanded of defendants a settlement for the shortage, which demand the proofs show was made one year before the trial. Plaintiffs paid defendants for 2,305,397 feet at $5175 per thousand. A computation based upon these data will show that the jury found a shortage of 737,739 feet, which, at $5.75 per thousand feet, amounts to $4,242. Add interest for one year ($297), and we have $4,539, which is the amount of the verdict. Hence the jury allowed the defendants for 1,567,658 feet of logs delivered under the contract. This is nearly 400,000 feet in excess of the mill scale.

Does the testimony of the alleged shortage support the verdict? This question involves an inquiry as to the number of the logs delivered to plaintiffs, and the quantity of lumber contained in them. Burns’ scale showed 19,038 logs. The mill scale showed only 15,210. The logs were delivered to plaintiffs as they were banked on Spirit river, and they took upon themselves the obligation and risk of driving tbe logs to the Wausau mill. The only proof plaintiffs gave to impeach Burns’ scale as to the number of logs was the mill scale and certain testimony that they searched the rivers for stranded logs. The proof of the mill scale of 1888 is defective, in that one or more of the persons who made portions of it were not called as witnesses, and so. the scale was not properly verified. Moreover, it was conclusively proved that at one point in the Wisconsin river, where these logs were driven, there were ten or twelve million feet of logs stranded upon the rocks, and jammed together in piles of great depth. Although plaintiffs searched there for the logs in question, it is perfectly obvious from the testimony that hundreds of them might have been in those piles without being discovered or discoverable. It is reasonable to believe that many of the logs in question were in those piles. These defects in the proofs, taken in connection with testimony given on the trial which tended strongly to show that the plaintiffs failed to use proper diligence to make a clean drive or to hold the logs after they were driven, lead us to the conclusion that plaintiffs did not successfully impeach Burns’ scale as to the number of the logs, and that the jury would not have been justified in finding that defendants did not deliver to plaintiffs 19,038 logs. We must assume the jury did its duty, nothing appearing to the contrary, and hence that they charged plaintiffs with that number of logs. It will therefore be considered a verity in the case that defendants delivered to the plaintiffs, under the contract, 19,038 logs.

As already stated, the jury found that the logs delivered to plaintiffs contained only 1,567,658 feet of lumber. This is an average of 82-J- feet per log, or about 12-J logs to the 1,000 feet. The mill scale showed an average of about 12.9 logs to the 1,000 feet, which is more favorable to the plaintiffs than the finding of the jury. We are opinion that the mill scale, although worthless for the purpose of fixing the number of logs delivered to plaintiffs, may properly be considered in determining the average quantity of lumber in each log so delivered, or the average number of logs required to cut 1,000 feet of lumber. The mill scale of most of the logs sawed at Barker & Stewart’s mill was properly proved, and under the testimony we think the jury might properly find that the logs thus scaled were a fair average of all the logs delivered to plaintiffs under the contract. Such being the case, it was competent for the jury to decide between the Burns' scale, which was 121 feet per log, or about 8£ logs to the 1,000 feet of lumber, or the mill scale, which, as we have seen, was about 12.9 logs per 1,000 feet, and to fix the amount of lumber contained in such logs according to either scale or at any intermediate point. The jury have fixed such quantity at an intermediate point between the two scales, and the testimony fully sustains the verdict in that behalf.

Several errors are assigned upon certain rulings of the court on objections to testimony. Many of these rulings are manifestly correct. If' any of them are not, we are unable to perceive how they could affect the verdict or harm the defendants. The charge of the court seems to state the law of the case correctly. Further reference to these alleged errors is unnecessary. We find in the record no reason for disturbing the judgment.

By the Court.— The judgment of the circuit court is affirmed.

WiNsiowj J., took no part.