Tewksbury v. Schulenberg , 48 Wis. 577 ( 1880 )

Cole, J.

It was undoubtedly incumbent on the plaintiff to show the amount of logs owned by the defendants which had been run over his dams, on which he claimed to be entitled to collect toll. This, we think, he did do by the best proof within his power to offer upon the subject. The witness Daniel Fox testified, in substance, that he had charge of the defendant’s books at the camp where the logs in question were cut; and that he kept an account of each day’s work, and himself recorded in these books, from the scaler’s shingle, the quantity scaled. He said that, without the books, from his recollection, he could state the amount appearing by the books to have been scaled; and he gave the amount. The scale book was in the possession of the defendants, who had been served with due notice to produce it on the' trial. They failing to produce the book, there can be no doubt that the plaintiff was entitled to give secondary evidence of its contents, even if the testimony of the witness had been objected to, as it was not.

There was certainly evidence from which the jury might well have found that all these logs which were banked and scaled for the defendants, above the plaintiff’s dam, during the winter of 1875-6, were run through the dam. But it is insisted that the court erred in admitting the testimony of the witness Patrick Fox against the defendants’ objection. This witness had charge of and conducted the business of cutting, hauling and getting out the logs for the defendants that winter; indeed, he had an interest in the profits of the business. He states the number of feet which were banked, sluiced and run through the plaintiff’s dam. He said he employed, a competent young man to do the scaling at the landing, and examined the books in which the scale was recorded from time to time.' He testified as to the contents of the scale book; and as to the amount of logs thus got out.' It is said that all this evidence relating to the quantity of logs scaled and run through the plaintiff’s dam, which was thus founded on the scale book, was in the nature of the declarations of an agent, and is not admissible to prove a claim against the principal. It seems to us that this objection is wholly untenable. The plain purpose of this testimony was to prove the quantity of logs scaled as shown by the scale book. It was strictly secondary evidence of the contents of a book in the possession and under the control of the defendants, which they were required to produce at the trial;

The able counsel for the defendants would surely not wish to be understood as controverting so elementary a principle in' the law as that a party may give secondary evidence of the contSnts of a book or instrument in the possession of his adversary, who, after due notice, has refused to produce such book or instrument. It is true, the entries in the scale book were made by persons employed by Patrick Eox, and not by the defendants. But still it appears that the scale book was delivered to the defendants and retained by them, and they had actually made settlements for stumpage based upon the accuracy of its contents. Having thus treated the book the same as though the entries had been made by one of their own servants, the witness might testify as to its contents; for presumably the book -was correct as to its entries. If the testimony as to its contents was not correct, the defendants certainly had the means at hand to disprove it. They had but to produce the book itself, the superior evidence, to-put an end to all controversy upon the point. Under the circumstances we have no doubt that the evidence objected to was admissible.

The amendment to tbe complaint, so as to mate it state the true amount of logs proved to have been driven through the dams in question, was properly allowed. It was a matter not material, and rested largely in the discretion of the court below.

It is further objected that the court erred in directing a verdict for the plaintiff, because of his failure to prove that he had performed the conditions precedent necessary for him to perform in order to recover toll for the use of his dams. But we think this objection cannot prevail. The plaintiff testified that his dams were in good repair, fit to run logs through, and that the defendants could not have driven their logs without the use of his dams. He certainly showed a right to recover toll on the logs run by means of his dams.

It follows from these views'that the judgment of the circuit court must be affirmed.

By the Court. — Judgment affirmed.