International Lumber Company v. Bradley Timber & Railway Supply Company

• Decision Date: 28 January 1916
• Docket Number: 19,387 - (61)
• Citation: International Lumber Company v. Bradley Timber & Railway Supply Company, 156 N.W. 274, 132 Minn. 155 (Minn. 1916)
• Parties: INTERNATIONAL LUMBER COMPANY v. BRADLEY TIMBER & RAILWAY SUPPLY COMPANY
• Court: Minnesota Supreme Court

156 N.W. 274

132 Minn. 155

INTERNATIONAL LUMBER COMPANY v. BRADLEY TIMBER & RAILWAY SUPPLY COMPANY

Nos. 19,387 - (61)

Supreme Court of Minnesota

January 28, 1916

Action of replevin in the district court for Koochiching county for $20,000, the value of the property, and $2,000 damages for its detention. The case was tried before McClenahan, J., and a jury which returned a verdict for defendant. Plaintiff's motion for a new trial was denied. From the judgment entered on the verdict, plaintiff appealed. Affirmed.

SYLLABUS

Replevin -- wilful confusion of goods -- theory of case.

Action in replevin to recover all of the lumber in the yards of defendant, on the theory that the defendant had wilfully and with intent to defraud mixed lumber sawed from logs belonging to plaintiff with its own, resulting in an inextricable confusion of goods. It is held:

(1) By insisting on the trial that it was entitled to recover all of the lumber or its value, and expressly consenting to an instruction to the jury that the verdict must be for the value of all the lumber, or a verdict for defendant plaintiff waived the right to recover for the lumber sawed from its logs.

(2) An instruction to the jury to the effect that plaintiff was entitled to recover if the jury believed from the evidence that defendant's acts were intentional, wilful and fraudulent, but not if they believed such acts were due to mistake, inadvertence or mere negligence, there being no objection or exception by plaintiff, and the instruction being in accord with the theory of plaintiff on the trial, is the law of the case, and plaintiff cannot now urge that the law is otherwise than as stated in the instruction.

(3) The evidence sustains the finding of the jury that defendant's acts were not intentional, wilful or fraudulent.

(4) There was no error in the rulings on the admission of evidence.

Harris Richardson and Walter Richardson, for appellant.

Baldwin Baldwin & Holmes, Franz Jevne and Marshall A. Spooner, for respondent.

OPINION

BUNN, J.

This is an action in claim and delivery, or replevin, in which plaintiff demands judgment for the immediate return and possession of two million feet of lumber or the value thereof, stated to be $20,000. The complaint alleged that defendant wrongfully caused to be sawed into lumber logs of plaintiff wrongfully taken from the Big Fork river, and caused the lumber to be piled in the mill yard of the State Lumber Company near the town of Gemmell in Koochiching county. The sheriff took the lumber under the writ of replevin, but defendant rebonded. The answer alleged that defendant was the owner of the lumber in question, except a small amount, not exceeding 2,000 feet, which belonged to plaintiff, coming into defendant's possession inadvertently and through mistake, for which defendant was and is ready and willing to pay plaintiff. The reply was a general denial. The case was tried to a jury, and the result was a verdict for defendant. Plaintiff moved for a new trial, the motion was denied and judgment entered on the verdict. This appeal is by plaintiff from the judgment.

Plaintiff's case is based upon the doctrine of confusion of goods. It was admitted in the answer and on the trial by defendant that a few of plaintiff's logs were taken from the river by defendant, shipped to Gemmell, sawed into lumber at the mill of the State Lumber Company there and piled with defendant's own lumber in the yard at Gemmell. The claim of defendant was that this was done through mistake and inadvertence and not wilfully. Plaintiff contended that a large number of its logs were taken from the river by defendant, sawed into lumber, and the lumber piled in the yards with its own lumber, and that this confusion of goods was wilful and intentional on the part of defendant. There is no doubt that plaintiff's log marks appeared on many different pieces of lumber in the piles in the yards at Gemmell as well as upon sawed-off ends, slabs and trimmings, which were found in the mill yard and upon 290 spruce and tamarack pulpwood logs found in the pond of the State Lumber Company's mill at Gemmell, of which 258 were afterwards shipped back by defendant to the Big Fork river, the other 32 being culls and worthless, according to defendant's witnesses. It is not necessary to detail the evidence of the respective parties in regard to the probable extent of defendant's appropriation of plaintiff's logs; it appears very clearly that some of the lumber in the various piles in the yards at Gemmell was undoubtedly sawed from logs belonging to plaintiff, and taken out of the Big Fork and shipped to the mill at Gemmell by defendant; it appears with equal certainty that the amount of this lumber, if not in itself inconsiderable, was small when compared with the total amount of lumber in the yards, which is what plaintiff seeks to recover in this action by applying the doctrine of confusion of goods. This fact is important only as it bears upon the question whether the jury was justified in finding defendant innocent of wilfully taking and mixing defendant's goods with its own. That this is the pivotal question on this appeal will, we think, clearly appear.

1. Defendant does not dispute that plaintiff was originally entitled to either the return of the lumber sawed from its logs or to the value thereof, but insists that plaintiff waived the right to this relief by insisting all through the trial that it was entitled to recover all of the lumber seized on the writ, and by expressly consenting to the instruction of the court to the jury that the verdict must either be for $20,000, the value, as alleged in the complaint, of all the lumber described in the complaint, or a verdict for the...