Bourda v. Jones

• Decision Date: 09 April 1901
• Citation: Bourda v. Jones, 110 Wis. 52, 85 N.W. 671 (Wis. 1901)
• Parties: BOURDA v. JONES.
• Writing for the Court: MARSHALL
• Court: Wisconsin Supreme Court

110 Wis. 52

85 N.W. 671

BOURDA

v.JONES.

Supreme Court of Wisconsin.

April 9, 1901.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Replevin by B. J. Bourda against A. M. Jones. From a judgment on the finding of the referee in favor of the plaintiff for less than the relief demanded, the plaintiff appeals. Affirmed.

Action of replevin for a quantity of hotel furniture. Plaintiff leased of respondent, for the season of 1897, a summer hotel with its furnishings, agreeing to return, at the termination of the lease, as much personal property in kind and quality as that covered by the lease, and to purchase for his use any additional furniture he might need. The lease was made February 27, 1897, and provided that the season should commence May 12th and end October 12th thereafter, and that before such commencement an inventory and appraisal of the personal property covered by it should be made. After the hotel was closed the preceding season respondent caused an inventory of his personal property therein to be taken. The inventory required by the lease was not made, but the evidence tended to show that the fact that respondent had an inventory made the previous fall was brought to appellant's attention, and that it was understood that it should stand as representing the leased personal property. The lease was renewed for the season of 1898. At the end of such season plaintiff closed the hotel without taking away his personal property. Later he made a list of the property he claimed, which was in defendant's possession, and demanded the same. The demand was refused, whereupon this action was brought to recover the same.

All the material allegations of the complaint were put in issue by the answer. Defendant tendered judgment pursuant to section 2789, Rev. St. 1898, for a large part of the property claimed, with costs up to the time of such tender. The tender was refused. The cause was tried before a referee. Appellant, to establish his cause of action, testified that all the property described in the complaint belonged to him and that the various articles were worth the amounts set opposite them respectively in a list attached to the complaint, the aggregate being $822; that he fixed the value as indicated because that was what the property cost; that the articles had been used in the hotel business from one to five years, but that they were worth as much as when new. Plaintiff's wife, assisted by a servant, inventoried the property in the hotel after the close of the tenancy, and their inventory was the basis of appellant's claim. Mrs. Bourda testified to the correctness of the inventory, but said that when making it she did not have any list of respondent's property to go by and did not know what all the property was. To maintain respondent's side of the case his son testified that in the fall of 1896 he made an inventory of his father's property that was leased to appellant in 1897, and that he caused it to be recorded in a book which was produced. He presented a list which he said was a copy of the book, and it was allowed to go in evidence as a part of his testimony. He also presented a paper which he said contained a true list of his father's property that was in the hotel when appellant's tenancy commenced; that he made it from the inventory of 1896; that on the list there were columns of figures, one showing property in the hotel in 1896, another property when the first inventory was taken, and the third what was found in the hotel after the replevin papers were served. At another point he testified that the first paper presented was a copy of the inventory of 1896 taken from the book that was produced, and that the second list was a copy of the articles in the inventory of 1896 of the kind found in the hotel by him and inventoried after the suit was commenced. The second list had four columns, one representing articles owned by respondent in the hotel at the commencement of the tenancy, one similar articles there when the inventory was taken by the witness after the tenancyterminated, one the number of articles short, and the other the number of articles in excess of what respondent was entitled to. Both lists were received in evidence against appellant's objections. Miss Maria E. Jones testified to having made an inventory of all the articles in the hotel after it closed for the season of 1898. She produced a list which she said was a correct exhibit of her work, written under personal directions as she called the articles off from the minutes of her inventory. The paper was allowed to be introduced as part of the witness' evidence. Respondent produced no evidence on the subject of value, except as to one article which he said was not worth over one-fourth of what it cost when new.

The referee found in favor of plaintiff, that he was entitled to recover certain specified articles, not including a large part of the property claimed and much of the property for which judgment was tendered. He followed the list made and verified by respondent's son, showing the excess of articles found in the hotel after the tenancy closed, over those belonging to respondent according to the inventory of September, 1896, which were turned over to appellant on May 1, 1897, according to the evidence of respondent's son, as such evidence is understood. The value of the articles found to belong to appellant, at the rate testified to by him, was over $300. The value found by the court was $50. The only evidence of damage was a general statement by plaintiff that he was damaged $200. He said he made that out because he had to buy articles to that amount, but that the property was worth as much as when it was bought. The damages were assessed at one dollar. The lease was put in evidence. The referee further found that appellant was entitled to a less favorable judgment than that tendered to him before the trial.

The findings and conclusions of the referee were substantially confirmed by the trial court. That was done by making new findings embodying the same conclusions as those reached by the referee, and the following, in substance: Plaintiff agreed in the lease to return to defendant all the personal property covered by the lease, in equal number kind and quality. Plaintiff vacated the leased premises at the termination of his tenancy and delivered possession thereof, with most of the chattels mentioned in the complaint, for the purpose of complying with the requirement of the lease that the lessee should make good to the lessor all property covered by the lease, at the termination thereof. The articles covered by the referee's finding were in excess of what defendant was entitled to recover. Judgment was rendered accordingly, costs being awarded to plaintiff up to the time of the tender, and subsequent thereto to the defendant.

Joseph B. Doe, for appellant.

Ryan & Merton, for respondent.

MARSHALL, J. (after stating the facts).

It is insisted that there was no evidence showing that appellant was not the owner and entitled to recover the property he claimed; that his alleged cause of action was prima facie established, and that there was no competent evidence to the contrary. That contention is based on the idea that the list of property produced and received in evidence, said to be a correct inventory of the property in the hotel when appellant took possession in 1897, and the inventories of the property found in the hotel after appellant left it in 1898, were improperly received in evidence. In that, counsel for appellant is in error. The inventory of 1896 was fairly shown...