Day v. Gumaer

• Decision Date: 20 October 1891
• Citation: 50 N.W. 182,80 Wis. 362
• Parties: DAY ET AL. v. GUMAER ET AL.
• Court: Wisconsin Supreme Court

80 Wis. 362

50 N.W. 182

DAY ET AL.

v.GUMAER ET AL.

Supreme Court of Wisconsin.

Oct. 20, 1891.

Appeal from circuit court, Marathon county; CHARLES M. WEBB, Judge.

STATEMENT BY THE COURT. In the spring of 1887 plaintiffs purchased a lot of logs of defendants. Such logs were then banked upon Spirit river, a tributary of the Wisconsin river. As they were delivered upon the bank, the logs were scaled by one Burns, who was employed by defendants. This scale shows 19,038 logs, containing 2,305,397 feet of lumber, which is a trifle over 8 1/4 logs to 1,000 feet. The plaintiffs paid for the logs according to such scale at the rate of $5.75 per thousand feet, which was the contract price therefor. The plaintiffs claim that defendants undertook and warranted that the logs contained the quantity of lumber at which they were scaled by Burns; and that defendants agreed, if the logs fell short of such scale, they would make good the deficiency to plaintiffs. The plaintiffs also claim that there was a shortage of over 1,000,000 feet in the lumber cut from the logs. This action was brought to recover damages for such alleged shortage and breach of warranty. The answer of defendants denies the alleged warranty, and avers that Burns' scale was correct, and that plaintiffs purchased the logs by such scale, after a careful examination thereof and test of its accuracy. Under the contract, the logs were delivered to plaintiffs on the roll-ways upon which they were banked, and the plaintiffs drove them, or a large portion of them, down the Spirit and Wisconsin rivers to Wausau, where they were sawed into lumber, for the plaintiffs, at the mill of Barker & Stewart. The testimony tends to show that 14,702 of the logs were thus sawed during the season of 1887, containing, according to the mill scale, 1,137,560 feet of lumber; 471 thereof, containing 38,930 feet, were thus sawed in 1888; and 37 logs, containing 2,880 feet, in 1889. The aggregates of these sums are 15,210 logs, containing 1,179,370 feet of lumber. A computation shows this to be an average of 12.9 logs to 1,000 feet of lumber. The plaintiffs gave testimony tending to show that no considerable number of logs were delivered to them under the contract beyond the 15,210 above mentioned. Testimony was also introduced by plaintiffs tending to prove the alleged warranty of the accuracy of Burns' scale, and the agreement of defendants to make good any shortage therefrom. The trial of the action resulted in a verdict for plaintiffs for $4,539. A motion for a new trial was denied, and judgment entered for plaintiffs, pursuant to the verdict. Defendants appeal from the judgment.Cate, Jones & Sanborn, for appellants.

Silverthorn, Hurley, Ryan & Jones, ( Bardeen, Mylrea & Marchetti, of counsel,) for respondents.

LYON, J.

Two questions raised by the pleadings were litigated on the trial. These are: (1) Did defendants warrant the accuracy of Burns' scale of the logs? and, if so, (2) was any shortage proved? The jury answered both of these questions in the affirmative, else they could not have found for plaintiffs. As to the first question, the learned counsel for defendants conceded in his argument that the testimony was sufficient to support a finding that the warranty was made as claimed by plaintiffs. This concession was advisedly made, for there can be no doubt the testimony fully supports such finding. The jury assessed damages at $4,539. They were instructed, if they found for plaintiffs, to allow interest at 7 per cent. on damages from the time plaintiffs demanded of defendants a settlement for the shortage, which demand the proofs show was made one year before the trial. Plaintiffs paid defendants for 2,305,397 feet at $5.75 per thousand. A computation based upon these data will show that the jury...