Paine v. Roberts , 29 Wis. 642 ( 1872 )

DlXON, C. J.

The exceptions to the rulings of the court excluding testimony offered by the plaintiffs in error, who were the plaintiffs below, are abandoned; and if they had not been, it is quite improbable that any error would have been found in them which would have operated to the advantage of the plaintiffs in this court. The court, as appears from the charge, submitted the cause to the jury altogether upon the question of delivery of the logs, or who received valid delivery of them first from Wood, whether it was the plaintiffs, or Rug-gles from whom tbe defendants purchased. In this view, it might possibly have been error to sustain the objection taken to the question put to the witness George M. Paine, as to whether "Wood delivered to him all the logs cut under the contract, had not the witness been immediately permitted to answer that he did deliver the logs in dispute. This last was enough, so far as proof could be made by that witness, of a delivery to the plaintiffs.

To the charge of the court, no exception whatever was taken by either party, and no special instructions were asked by either, so that it must be taken that both parties were content to have the cause go to the jury upon the mere question of delivery, with such explanations as were given them by the court upon that subject. Under these circumstances, it is extremely doubtful whether there is any question before us for consideration, upon the motion for a new trial, which was denied and exception taken, aside from the question whether there was any evidence before the jury to authorize their finding that a valid delivery of the logs was first made by Wood to Ruggles. There was evidence, no doubt, from which the jury might have found, and which in our judgment may have been the stronger and the better, that good and sufficient delivery was first made to the plaintiffs; but still the testimony upon the point was not of that clear and satisfactory kind that we can say the jury were positively bound to receive and return a verdict upon it. There was room for doubt, and it was a question fairly open to debate, whether the plaintiffs had established such a delivery. There was some confusion in the testimony, and it was for the jury to settle the question upon all the evidence before them. We cannot disturb their' decision. On the other hand, supposing there had been no prior delivery to the plaintiffs, there was clear proof of an actual delivery to Ruggles. If he was to be believed (and that was for the jury), he obtained actual possession of the logs from the boom company, under an order and by the direction of Mr. Wood.

In this view of the case, and of the manner in which it was submitted, all other questions argued here seem to be entirely out of it. If the plaintiffs had desired to raise any question as to a fraudulent or improper mixture of logs'by Wood, or to have the jury pass upon the plaintiffs title to the logs as having been cut upon their own land under their contract with Wood, special instructions should have been prepared and the opinion of the court taken upon them, so that they could have been given to the jury, or, if not given, the points saved by proper exceptions. And the same course should have been pursued as to other points, which are urged here but cannot be considered.

By the Court. — Judgment affirmed.