Ranney v. Higby , 12 Wis. 61 ( 1860 )

By the Court,

DIXON, C. J.

This is tbe fourth time this case has been before this court. Whatever might have been our views as to tbe construction and effect of tbe original contract between tbe parties, were tbe question res integr'a, it must now, in view of tbe former adjudications, be regarded as res adjudícala.

By those adjudications, (4 Wis., 154, 5 id., 62, and 6 id., 28,) it is established tbat there was an absolute contract "between them, upon which, the defendant was liable to pay the plaintiffs for the salt, notwithstanding it was lost in transitu, unless the defendant could show that they had received payment by the money secured upon the policy of insurance; and that the defendant is entitled to the acceptance of the insurance company, for the amount of the loss as adjusted by the plaintiffs. This last proposition seems to establish also, that the defendant is entitled to the certificate of the receiver of the insurance company given for the acceptance, and noted on the back of it. We do not propose to enter into any discussion of the correctness of either of these propositions. Upon the trial, the plaintiffs complied with the last, both with respect to the acceptance and certificate, provided those produced and offered to the defendant were the same received by the plaintiffs, upon which some doubts were raised. Without giving our own impression, formed [from the evidence as it appears before us, upon this question of identity, we think that the circuit judge erred in refusing the ninth instruction asked by the plaintiffs’ counsel, to-wit: that the fact that the words, “loss or damage by fire," are found in the certificate of ike receiver, is not conclusive evidence that the claim certified originated in a loss by fire. It certainly needs no argument or citation of authorities to show that such recital in the certificate was not conclusive, and that it might be shown that it was not a loss by fire, and that it was so recited by mistake. It is contended by the counsel for the defendant, that the error committed by this refusal, was rectified in a subsequent portion of the charge, where, he says, it was in substance given. We do not think so. The instruction asked, which was correct, was plainly and pointedly refused. The subsequent instructions, in which the jury were told, that in determining the question of identity, they could consider as strong circumstances, the coincidence of dates, names, signatures, amounts, &c., it is true, look as if it was intended to submit to them the question of identity, notwithstanding the recital; yet from the manner in which they were given, we do not think they were calculated completely to remove from the minds of the jurors, the impression which they must bave received from such refasal. Tbe jury were not directly told, tbat if, in tbeir opinion, from tbe evidence before tbem, tbe draft and certificate were given in settlement for tbe loss of tbe salt, then tbeir verdict should be for tbe plaintiffs. Indeed, some portions of tbe subsequent instructions seem to bave an opposite tendency. They were told tbat there was no explanation of tbe mistake in tbe certificate, unless, indeed, they could draw it from tbe face of tbe draft, and other parts of tbe certificate, and tbat they must take all written instruments in tbeir plain and obvious meaning. This language can hardly be said to be equivalent to giving tbe instruction asked by tbe plaintiffs’ counsel.

Tbe only other feature in which tbe case differs from what it was when heretofore before this court, grows out of tbe introduction in evidence of tbe statement of account, furnished by tbe plaintiffs to tbe defendant, in tbe letter of January 31st, 1852. Tbe letter in which tbe balance claimed to be due is stated, and in which it is said tbe account is inclosed, was in evidence, as appears from the case reported in 5 Wis. We do not see bow this varies tbe case. It is contended tbat tbe draft of $1500 appearing as a general credit in this statement of accounts, is conclusive proof as against tbe plaintiffs, tbat tbe moneys received upon it were applied generally to tbe account, and tbat tbe plaintiffs could not afterwards select a single item, less in amount than tbe general balance claimed to be due, and sue upon it, but must sue, if at all, for such balance. If this question is not to be regarded as settled by former adju.dications in this case, still we do not think tbe proposition is correct particularly where, as in this case, it appears tbat tbe selected item sued upon, is tbe only one in the whole account about which there is any dispute between tbe parties. Certainly tbe defendant cannot complain at this course of proceeding. He is not wronged by it. If after having furnished such statement, tbe plaintiffs bad sought to apply tbe payment to tbe disputed or doubtful item, and bad then brought suit upon one about which there was no dispute, thus endeavoring to shun an investigation of tbe doubtful item, there would be some reason for the rule. But here there is none.

The judgment must be reversed, and a new trial awarded.