Whitney v. Clifford
Decision Date | 01 January 1879 |
Citation | 49 N.W. 835,46 Wis. 138 |
Parties | WHITNEY v. CLIFFORD |
Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Portage County.
The plaintiff appealed from a compulsory judgment of nonsuit. The case is sufficiently stated in the opinion.
Judgment reversed and new trial ordered.
The appeal was submitted on the brief of G. W. Cate, with Jones & Sanborn, of counsel, for the appellant; and that of Raymond & Haseltine for the respondent.
This action is brought to recover damages for burning a large quantity of lumber belonging to the plaintiff. The complaint charges that the fire was communicated to the lumber by sparks and cinders emitted from the smoke-stack of a shingle mill belonging to and used by the defendant at the time of the accident. Upon the trial in the court below, the learned circuit judge directed a nonsuit, and judgment was entered against the plaintiff.
The only ground upon which it is contended in this court that the nonsuit was properly ordered, is, that the defendant, at the time of the fire, was not in the possession of the mill, and that one A. F. Dodge was in such possession and had the exclusive control of the running and use of the same, under a written contract with the defendant.
It is urged by the learned counsel for the respondent, that the contract referred to created the relation of landlord and tenant between the defendant and Dodge; and that Dodge, being in the actual possession and use of the mill at the time of the fire, as tenant, is alone responsible for the injury occasioned to the plaintiff by reason of the fire communicated by the sparks and cinders emitted from the smoke-stack of said mill. It is also insisted, that if the relation of landlord and tenant did not exist between the defendant and Dodge, yet, by the provisions of the contract the possession and control of the use of the same was in Dodge at the time, and therefore the defendant is not liable for the damages caused by the use of such mill.
Upon this appeal, it is unnecessary to examine any other questions than the ones above stated, as it is quite evident that upon other points of defense to the action there was sufficient evidence to entitle the plaintiff to have the same submitted to the jury.
The following is a copy of the contract between the defendant, Clifford, and Dodge, under which it is claimed that Dodge was in possession and running the mill when the fire occurred:
After a careful consideration of the provisions of this contract, we think it is not a lease of the mill by Clifford to Dodge. Nothing in the language of the contract indicates that the parties intended it as such, and there does not appear to be anything in the nature of the contract which necessarily creates the relation of landlord and tenant. All the circumstances of the respective parties, as indicated by the terms of the contract, show that it was a hiring by Clifford of Dodge to manufacture certain logs owned by Clifford into shingles, Clifford furnishing the machinery for manufacturing the same, and Dodge furnishing the labor and other necessary things to run the machinery, pack the shingles and deliver the same on the cars at the mill, at a fixed price per thousand for the shingles manufactured, according to quality. Clifford was to put the machinery in good repair, and to repair all breakages costing more than $ 5.
Dodge acquired no right under the contract to use the mill for any other purpose than that of manufacturing the logs furnished by Clifford. The sole object of the contract, on the part of Clifford, it would seem, was to get his pine lumber manufactured into shingles, not to get a rent for his mill. He furnished the machinery to manufacture the shingles, and thereby lessened to himself the cost of their manufacture to the extent which the use of such machinery was worth in the manufacture of the same. Instead of hiring men by the day or month, at fixed wages, to...
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Weston v. Weston
... ... merits, it was error to grant the application. Levy v ... Goldberg, 40 Wis. 308; Seymour v. Supervisors, ... id., 62; Howey v. Clifford, 42 id., 561. 5 ... That at least the application should have been granted only ... upon payment of costs ... G. W ... Cate, ... ...