Valley Lumber Co. v. Smith

• Decision Date: 27 March 1888
• Citation: 37 N.W. 412,71 Wis. 304
• Parties: VALLEY LUMBER CO. v. SMITH ET AL.
• Court: Wisconsin Supreme Court

71 Wis. 304

37 N.W. 412

VALLEY LUMBER CO.

v.SMITH ET AL.

Supreme Court of Wisconsin.

March 27, 1888.

Appeal from circuit court, Eau Claire county.

The Valley Lumber Company, plaintiff and respondent, brought an action to recover balance of account, and also for the use and occupation of certain logging camps owned by plaintiff, against Absalom Smith and William White, defendants and appellants. Verdict for plaintiff. Defendants appeal.Opdale & Wickham, for appellants.

W. F Bailey, for respondent.

ORTON, J.

This action is brought to recover a certain sum for goods, wares, and merchandise, and $200 for the use of lease of certain logging camps during the winter of 1883 and 1884, situated on a certain 40 acres of land belonging to the plaintiff, which had been denuded of its timber or stumpage. The only matter controverted on the trial was the claim for $200 for the use of said logging camps. This the defendants denied in their answer. The only witness for the plaintiff on that question was one Carson, the president of the plaintiff company, who testified that the contract for the use of the logging camps was made by him when he and Smith, one of the defendants, were alone, and that such was the contract. The defendant Smith testified with great positiveness that the defendants never made any such contract, but that the contract was that the defendants should pay the plaintiff $200 for a good title of the said 40 acres of land, with the old camps thereon, which were dilapidated, and of scarcely any value whatever. Another witness, who claimed to have been present when the contract was made, testified that the said Carson, the president of the company, said, “I will do better by you than by the other man. I will give you the logging camps and the 40 acres of land the camps stand on for $200, and give you title.” Another witness testified that he heard the said Carson substantially admit that he had sold the defendants the camps and the 40 acres. The testimony tended to show that the defendants, the winter before, had been troubled by some one shutting up their roads across the said 40-acre lot, which they used in their logging business on other lands in the vicinity, and that they wished therefore to own and have full control of that lot, so as to prevent such annoyance. The said Carson on cross-examination testified that “Smith's object was to purchase those camps, and get the 40 acres of land on which they stood, so that he might control the roads on account of this trouble;” and he further testified, “I would have given him title to the 40 acres of land if I had known he wanted it. It would not have been any detriment to have deeded it to him. I would not give him the title now if he paid the money. I never agreed to.” This is a sufficient statement of the case to show the pertinency of the exceptions. The jury rendered a verdict for the plaintiff of $238.62, presumably for the $200 for the use of the logging camps, and interest. To reverse the judgment rendered on this verdict, the appellants allege the following errors: First. The appellants offered and asked questions tending to show the real value of the logging camps at the time, and that they were useless to the plaintiff, as the timber had all been cut off the 40 acres, and that they were not in a condition to use until repaired, and that they were of no value whatever, for the purpose of corroborating the testimony of the defendant Smith and of the other witnesses as to what the contract was. The court sustained the objection of the plaintiff to such offer and questions. This was clearly erroneous. This was a very strong case for the application of the rule that such corroboration is proper when there is a direct conflict of the evidence as to the contract price to be paid for the property in question. If the logging camps were of the value of $200 or more, then the plaintiff's version of the contract would be quite probable as against the testimony for the defendants that such consideration was to include the title of the 40 acres also. On the other hand, if the camps were of little or no real value to any one, then the testimony of the defendants would be quite probable as against the testimony for the plaintiff that the defendants agreed to pay $200 rent for the use of such camps for one winter. This is agreeable to common reason, and logical, and such evidence is approved by the authorities. The evidence disapproved in Krammen v. Mill Co., 58 Wis. 399, 17...