Hurst v. Webster Mfg. Co.

• Decision Date: 08 May 1906
• Citation: 107 N.W. 666,128 Wis. 342
• Parties: HURST v. WEBSTER MFG. CO.
• Court: Wisconsin Supreme Court

128 Wis. 342

107 N.W. 666

HURST

v.WEBSTER MFG. CO.

Supreme Court of Wisconsin.

May 8, 1906.

Appeal from Circuit court, Douglas County; A. J. Vinje, Judge.

Action by W. E. Hurst against the Webster Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action to recover the balance of the purchase price of a quantity of hardwood logs sold by the plaintiff to the defendant. The complaint alleges the delivery of 255,017 feet of logs at the agreed price of $12 per thousand; admits the payment of $2,057.31; and prays judgment for a balance of $1,002.89. The answer alleges delivery of only 202,730 feet of elm and ash logs, at the agreed price of $12 per thousand, and 370 feet of maple logs, at $11 per thousand, and admits payment of $2,057.31, and that there is a balance due of $379.49, for which amount judgment was tendered but not accepted. The number of logs sold and delivered was admitted to be 2,145, but the dispute was as to number of feet contained in them. The evidence showed that the logs were delivered by plaintiff at defendant's yard in January and February, 1905; that the defendant had them scaled as they came into the yard by two men, one of whom scaled 1,102 logs aggregating 105,120 feet, and the other 1,043 logs aggregating 97,980 feet, making a total of 203,100 feet. Statements of the result of these scales were sent to the plaintiff, who thereupon employed Timothy Atkinson, district scaler for the district, to scale the logs. Atkinson commenced scaling about March 1st, assisted by one Doe as tallyman. The logs were in a number of large piles in the defendant's yard; Atkinson testified that he and Doe went along the piles measuring the small ends of the logs as high as they could reach, and putting down in a book the number of feet in each log; that he then went on top of the piles and called off the diameters and number of feet of the logs on top, and Doe put down the amounts as he called them; that in this way they actually measured 784 logs, and these logs so measured averaged 119 feet each, which number he multiplied by the number of logs to get the total. Atkinson made a certificate of this scalement, which was offered and received in evidence, showing a total of 255,017 feet. At the close of the evidence this scale bill was stricken out. There was testimony tending to show that no accurate scale of the logs could be thus made. After the commencement of the action the defendant notified the plaintiff that it would have the logs removed, and rescaled as they were repiled, and offered to allow the plaintiff to have a scaler present on his behalf; the plaintiff did not accept this offer, but the rescaling was done, and the scaler testified that as a result of the rescale he found 117,780 feet only. The jury returned a verdict for the plaintiff for $688.76, to which interest amounting to $8.45 from the commencement of the action was added, and the judgment entered, and the defendant appealed.H. V. Gard, for appellant.

W. P. Crawford, for respondent.

WINSLOW, J. (after stating the facts).

The errors assigned will be considered under three heads.

1. It is claimed that there was error in adding interest to the amount of the verdict, from the time of the commencement of the action. This depends upon whether interest was included in the verdict as rendered. Referring to the charge of the court we find that the jury were specifically instructed to determine the amount of ash and elm delivered, and multiply that amount by 12, the price per thousand feet, and deduct therefrom the payments, viz., $2,053.24 (not including $4.07, which was paid for maple and was not in dispute), and return a verdict for the balance. From this it appears that the jury could not have included any interest under the terms of the charge, and as plaintiff was entitled to recover interest from the time of the commencement of the action if he recovered at all, there was no error in adding interest to the amount of the verdict as was done.

2. It appeared that Timothy Atkinson, on whose testimony the plaintiff relied to prove his claim, was, at the time he made his alleged scale of the logs in question, inspector of logs and timber for the district where these logs were located; after testifying that he made a measurement and scalement of the logs in March, 1905, he stated that he made a certificate of his scalement and gave the same to the plaintiff, and the certificate so made and identified by him was offered and received in evidence. He afterwards testified as to the manner of making the scalement, showing that he in...