Thomas v. Seely

40 Wis. 468

• Court: Wisconsin Supreme Court
• Decided: August 15, 1876
• Status: Published

Opinion

Lyon, J.

The plaintiff was permitted to prove the weight and value of the fleeces of wool taken from the sheep in controversy at the shearing of 1875; and the court refused to instruct the jury that, if they found for the plaintiff, they could not properly include the value of such wool in the damages assessed by them. ¥e find no testimony in the bill of exceptions showing or tending to show a conversion of the wool by the defendant. So far as appears, the defendant may yet have tbe same in bis possession, ready to deliver it to tbe plaintiff on demand, and no action can be maintained for it without proof of conversion.

The testimony of the value of tbe wool may bave been competent in tbe case as bearing upon tbe value of tbe sheep; but, in tbe absence of any proof of conversion, the jury should bave been instructed not to assess damages for tbe value of tbe wool. Tbe jury were liable to be misled by tbe refusal to give this instruction.

Other errors are assigned, but it is not deemed necessary to pass upon them. For tbe error first above mentioned, there must be another trial.

By the Court. — Judgment reversed, and new trial awarded.