Liebermann v. Lippert

85 N.W. 126, 109 Wis. 1, 1901 Wisc. LEXIS 268

• Court: Wisconsin Supreme Court
• Decided: February 1, 1901
• Status: Published

Opinion

Dodge, J.

Upon careful examination of the record, we are unable to find any evidence to justify instruction of verdict in favor of plaintiff in excess of the conceded item of $20 for storage charges due at the time of the sale. As to the cost of rebagging the peas and new bags, there is no direct evidence save that of one of the warehouse employees that the total charges subsequent to the sale were $34.85 for bags and rebagging and for storage, but the amount for each is not specified. Defendant could not be liable for subsequent storage; hence it results that the amount of his liability within that $34.85 was left indefinite and conjectural. True, plaintiff testified that Oourteen, to whom he sold, made demand of him for such charges specifically. That testimony, being objected to, was evidence only of the fact of the demand. It was wholly hearsay as to the incurring by Courteen or by the warehouseman of the expenses ■specified, or any expenses, and did not tend to prove such facts.

As to the shortage in weight of peas, the burden of proof is, of course, on the plaintiff. Thát burden is not lifted by ¡proof that three months later the peas weighed a certain amount, when, as here, it appears that the' bags in which they were kept were rat-eaten and dilapidated, and that in the interval the peas had been removed from the bags, handled over, and placed in other bags, thus showing abundant opportunity for change in the actual condition and amount after the purchase and before the weighing.

By the Court.— Judgment reversed, and cause remanded for a new trial, with the option to the plaintiff, within twenty days after notice of filing remittitur, to take judgment for the sum of $20.