Gallinger v. Lake Shore Traffic Co.

• Decision Date: 14 December 1886
• Parties: GALLINGER v. LAKE SHORE TRAFFIC CO.
• Court: Wisconsin Supreme Court

67 Wis. 529

30 N.W. 790

GALLINGER

v.LAKE SHORE TRAFFIC CO.

Supreme Court of Wisconsin.

December 14, 1886.

Appeal from circuit court, Marathon county.

The ninth assignment of error was the following ruling of the court: In the examination of a witness for the defense called to impeach the testimony of B., a witness for the plaintiff, by showing that the witness for the plaintiff had made different statements out of court from those testified to by him in court, the court ruled that the impeaching witness should not state the conversation with the witness B., but that the same questions should be put to the impeaching witness as were put to the witness B.

The tenth assignment of error was that counsel for plaintiff were permitted, in two sentences of their arguments, to connect defendant with the Lake Shore Railroad, some of the officers of which were officers of defendant, and thereby take advantage of the popular prejudice against railroad companies, and excite prejudice in the minds of the jury against the defendant.Finch & Barber, for respondent, Gallinger.

Alfred L. Cary, for appellant, Lake Shore Traffic Co.

TAYLOR, J.

This action is brought by the respondent to recover from the appellant a balance which he claims is due to him upon a logging contract which he claims to have made with the appellant. There is no dispute but that the respondent cut and hauled to the appellant's mill several million feet of logs in the winter of 1883; nor is there any dispute that he cut and hauled such logs for the appellant under a special agreement as to the price he should be paid therefor. The only dispute is as to the price which the appellant agreed to pay. On the part of the appellant it is insisted that the price agreed upon for all the logs put in by the respondent during that logging season was $3.50 per thousand feet, and it is admitted that the respondent had been paid at that rate for all the logs put in. On the part of the respondent it is claimed that the price for putting in the logs, which were put in from the west side of the lake spoken of in the case, and on which lake the appellant's mill was situated, was to be $4.50 per thousand feet, instead of $3.50 per thousand feet, as claimed by the appellant. The action is brought to recover the extra dollar per thousand feet for the logs put in from the west side of the lake. There is no dispute, either, as to the quantity of logs put in from said west side of the lake. The whole controversy in the case is upon the question of the price which the appellant agreed to pay for putting in the logs. The plaintiff claims that the price agreed upon for the west-side logs was $4.50 per M., and the evidence on his part given upon the trial, if believed by the jury, clearly justified the verdict of the jury in his favor for the amount claimed by him. The evidence shows that the contract made for putting in the logs in question was made, on behalf of the appellant, by one James Blackburn, who was shown to be the superintendent of the appellants, at their saw-mill, where the logs were delivered.

So far as the questions of fact in this case are concerned, it is evident that the merits of the plaintiff's demand rest mainly upon the question of the authority of Blackburn to bind the appellant company by his contract with the respondent. The respondent testifies that the contract for putting in the logs was made with Blackburn, acting for the company; and Blackburn testifies that he made the contract on behalf of the company, and agreed to give him the $4.50 per M., as claimed by the respondent.

Upon the question of the general authority of Blackburn to make contracts for the company, and on their behalf, in relation to cutting and hauling logs to the mill, there is sufficient evidence in the case to justify the court or jury in finding that he had authority to bind the company in regard to such contracts. Blackburn testifies, as to his authority, as follows: “I was superintendent for the company at Norris [the place where the appellant's mill was situated] for about three years and a half, from the fall of 1880 to July, 1884.” In answer to the question, “Go on and state in detail what you did for them, and what it was a part of your duty to do,” he testified: “I had to arrange for logging contracts, for sales of lumber, engage men and discharge them, to pay them for the time they worked, and other duties of that kind.” In answer to the following question, viz.: “So far as making the contracts, fixing the prices, etc., in whose charge was that?” he answered: “In mine exclusively.” “It was left to me.” “The details of these contracts was in my charge.” Again, he testified that the general manager of the company, Mr. Reed, invariably left to him the making of these contracts for getting in logs for the company, and he mentions a large number of contracts for getting in logs made by him for the company,--some in writing and some verbal contracts,--in which he fixed the price to be paid by the company, all of which contracts had been performed by the company as he made them, without objection.

The authority of Blackburn to make these contracts on behalf of the company is only denied so far as the fixing of the prices to be paid was concerned. Mr. Reed, the general manager, testified that the price was always fixed by him, before Blackburn had any authority to bind the company; but he does not deny that the other details of the contracts were left to Mr. Blackburn, or that the contracts, as finally made, were made by Blackburn on behalf of the company; nor does he claim that he personally fixed the prices with the parties with whom Blackburn made the contracts, except in one or two instances. He simply limited Blackburn as to the prices he should give in making the contracts; nor does he claim that he had any conversation with the plaintiff in this action as to the price he was to receive for putting in the logs for which he claims the extra compensation, previous to the time he claims to have made his contract with Blackburn.

In this state of evidence it is very clear that the question as to the authority of Blackburn to bind the company by his contract made in behalf of the company with the plaintiff was a question of fact for the jury, and not of law for the court; and upon the testimony in the case there seems to be a clear preponderance in favor of his authority. If it were admitted that the proof shows that, as to this contract, Blackburn had exceeded his authority as between himself and the company, yet, in the absence of any evidence showing that the plaintiff had any knowledge of such restriction upon his authority in this particular case, and in view of the fact that Blackburn had theretofore made all the contracts of a similar character on behalf of the company, and that such contracts had been approved by the company, we are of the opinion that the company would be bound by the contract made by Blackburn if the company permitted it to be performed by the plaintiff without notice that Blackburn had exceeded his authority in making it. The following authorities cited by the learned counsel for the respondent fully sustain this view of the case: Railroad Co. v. James, 24 Wis. 383;Hall v. Railroad Co., 48 Wis. 317;S. C. 4 N. W. Rep. 325;Gano v. Railroad Co., 49 Wis. 57;S. C. 5 N. W. Rep. 45;Same v. Same, 60 Wis. 12;S. C. 17 N. W. Rep. 15;Bentley v. Doggett, 51 Wis. 231;S. C. 8 N. W. Rep. 155;Bouck v. Enos, 61 Wis. 664; S. C. 21 N. W. Rep. 825;State v. Doyle, 40 Wis. 200;Kasson v. Noltner, 43 Wis. 650;Savage v. Davis, 18 Wis. 608.

The jury having found by their verdict that Blackburn had authority to make the contract with the plaintiff, and that he did make the same as claimed by the plaintiff, those findings are conclusive upon this court. This is not a case where there is only a scintilla of evidence to sustain the verdict. Upon a careful reading of the evidence we think the verdict can hardly be said to be against the weight of the evidence. The evidence on the part of the plaintiff, if believed by the jury, was ample to sustain the verdict; and it is the peculiar province of the jury to pass upon the credibility of the testimony of the several witnesses. The jury having settled the material questions of fact in the case in favor of the plaintiff, the judgment must stand, unless there are material errors in the admission or rejection of evidence, or in the instructions of the court to the jury.

The first error assigned by the learned counsel for the appellant is that the court refused to order the plaintiff nonsuited at the close of his evidence. That point has been virtually decided against the appellant by what has already been said in this opinion.

But it was urged by the learned counsel for the appellant, on the...