Minton v. Underwood Lumber Co.

• Decision Date: 05 May 1891
• Citation: 79 Wis. 646,48 N.W. 857
• Parties: MINTON v. UNDERWOOD LUMBER CO. ET AL.
• Court: Wisconsin Supreme Court

79 Wis. 646

48 N.W. 857

MINTON

v.UNDERWOOD LUMBER CO. ET AL.

Supreme Court of Wisconsin.

May 5, 1891.

Appeal from circuit court, Oneida county.Miller & McCormick and F. M. Hoyt, for appellants.

Levi J. Billings, Bardeen, Mylrea & Marchetti, and B. W. Jones, for respondent.

ORTON, J.

The plaintiff's claim consists of his own labor performed for McPhee & Mitchell, the contractors, in driving the logs of the defendant on the Wisconsin river, a certain number of days, between the 15th day of April and the 23d day of May, inclusive, 1889, at $2.50 per day, and as the assignee of the claims of four other persons who performed labor on the same drive a certain number of days at the same price. By the petition for a lien upon the logs of the defendant company in the driving of which said labor was performed, and by the complaint, the last day's work was performed on the 22d day of May, 1889. By leave of the court the petition and complaint were amended to make said day the 23d day of May, 1889. The petition was filed on the 22d day of June thereafter. The answer alleges that the defendant owned the logs mentioned in the complaint, marked on the side “T. I. N.” and on the end “L. I. Z.,” and that they were driven on the Wisconsin river by McPhee & Mitchell between the 25th day of April and the 22d day of May, 1889, on contract, and that they had been paid therefor, and that all the labor performed in driving said logs was performed for them. The answer denies that the plaintiff or his assignors performed any labor on said logs after the 22d day of May, 1889, and denies that the petition was filed on the 22d day of June thereafter, and alleges ignorance of all allegations not admitted or denied. On the plaintiff's behalf the testimony tended to prove that he and his assignors performed the labor first for several days in driving logs marked “Diamond V.,” “D. & S.,” and “W. M.,” belonging to other parties than the defendant, before coming down to the point where the defendant's logs were mingled with the drive,--the plaintiff two days, and the assignors eight or ten days,--and that the claim for such labor is a part of the plaintiff's claim in this action. And the testimony for the plaintiff tended to prove further that the plaintiff and his assignors worked the number of days, and at the price, and on all the lots of logs, as alleged in the complaint. In addition to this oral testimony, the plaintiff introduced the timechecks given by McPhee & Mitchell, showing the number of days the plaintiff and his assignors worked on the whole drive, the price of $2.50 per day, and the gross sum due; and they were received in evidence, under the objection and exception of the defendant. Afterwards the accountbook of said McPhee & Mitchell, in which the accounts of the plaintiff and his assignors for such labor were entered, was introduced in evidence, under like objection and exception of the defendant. The defendant introduced testimony tending to prove that the plaintiff and his assignors did not work the number of days charged, and performed no work whatever on said logs on the 23d day of May, 1889, but that their labor thereon ceased on the 22d day of May, or the day before. The jury found a verdict, and judgment was rendered for the plaintiff for a lien on the logs of the defendant for the full amount of plaintiff's claim and interest. This appeal is taken from said judgment. The errors assigned by the learned counsel of the appellant, in their brief, will be disposed of in their order.

1 and 2. Besides the objection to the introduction of the account-book and timechecks...