Lill's Chicago Brewery Co. v. Russell

22 Wis. 178

• Court: Wisconsin Supreme Court
• Decided: September 15, 1867
• Status: Published

Opinion

Paine, J.

There was no error in the ruling of the court below in respect to the liability of the defendants to this action, if the property belonged to the plaintiff, and the defendants had possession of it, and refused to deliver it on demand. There is no statute authorizing the county judge to make any order like the one made in this case. But that appears to be wholly immaterial; for if the defendants had been regularly appointed administrators of Hurst, the appointment would only have entitled them to the possession of his property, not to that, of the plaintiff. If an administrator takes possession of the property of a stranger, claiming it as belonging to his intestate, if he detains it from the true owner after a demand, he would be liable to an action to recover it. And a fortiori, if a person not administrator takes such possession and so detains it, he would be liable. The fact that he may have supposed it belonged to a deceased friend, whose estate he desired to protect, can constitute no legal defense to such an action. By taking possession, and assuming control over it so far as to refuse to surrender it, on demand, to the true owner, he renders himself liable to the appropriate remedy to obtain possession, without regard to the motives that may have influenced his action.

The only other question is, 'whether there was error in admitting in evidence the paper containing an account between the plaintiff and Hurst in the year 1865. That account was found among Hurst’s papers; and if the question in issue had related to the ale he received from the plaintiff at that time, the paper containing a credit to him for his commission would have been strong evidence to show that he was selling it on commission for the plaintiff, and that he had not bought it.. If there is any objection to it, it is because the time of the transactions was so remote from the time of those involved hfere. But that would only make it immaterial; and a judgment will not be reversed for merely immaterial evidence, unless the court can say from the record that it probably prejudiced the rights of the opposite party. But that could not be .said here; for the evidence seems ample without this paper, to show .that .the ale in question belonged to the plaintiff, and was in Hurst’s possession for sale, on commission. But there seems no objection to the admissibility of the paper itself.' It showed that in 1865 Hurst was selling ale on commission for the plaintiff. That was somewhat remote. It was not very strong evidence to show that he was selling in the same way in the latter part of 1866. Yet it had some tendency to show it. Because, it appearing that, a particular course of dealing is once established between parties, a jury might reasonably infer that tha same course continued, unless there was some evidence to the contrary. It was a circumstance that they were at liberty to consider.

By the Court. — The judgment is affirmed, with costs.