
    Poler and another, Respondents, vs. Mitchell, Appellant.
    
      February 19
    
    March 11, 1913.
    
    
      Appeal: Questions of fact: Sale of logs: Effect of agreed scale: Instructions to jury: Harmless error: Damages: Reducing jury's award: Reference: Discretion.
    
    1. Where the direct evidence as to a disputed fact is conflicting and the corroborating circumstances in favor of the verdict are as persuasive as those against it, the verdict must stand.
    2. In an action to recover a balance due for logs sold and delivered, an error in instructing the jury as to the binding effect of a scale agreed upon by the parties was not prejudicial where defendant admitted that he had received more than the agreed scale and the only question for the jury was how much, if any, more than the amount so admitted he had in fact received.
    3. The trial court, in giving plaintiff the option to take judgment for an amount less than that found by the jury or submit to a new trial, having stated that he was convinced that another jury fairly, impartially, and logically considering the evidence would probably fix the amount as low as such reduced sum, and having referred to Heimlich v. Tabor, 123 Wis. 565, such statement and reference are held, to show that he had in mind and adopted the true rule in reducing the verdict, namely, to reduce it to an amount helow which an impartial jury would probably not place it upon a retrial.
    4. The granting or denying of a reference on the ground that a counterclaim involved the examination of a long account was a matter resting in sound discretion; and the denial in this case was not an abuse of such discretion, especially as the verdict eliminated the counterclaim.
    Appeal from a judgment of the circuit court for Marathon county: A. H. Reid, Circuit Judge.
    
      Modified and affirmed.
    
    Action to recover balance of purchase price for logs sold and delivered to the defendant. The complaint alleged that some time in January, 1910, the plaintiffs entered into an' oral contract with the defendant to sell to him a certain quantity of basswood, elm, birch, and pine logs, at certain agreed prices except as to elm, and to deliver the same at the sawmill of one George McNinch; that pursuant to such contract they delivered at said mill for the defendant 203,533 feet, which, under such alleged contract, amounted to $2,602.19; that due demand was made upon the defendant for the payment of this sum, but none thereof was paid except $1,421, and judgment was prayed for the balance of $1,175.19, with interest, and coste of the action.
    The defendant alleged that the terms of the oral contract were not as claimed by the plaintiffs; that he contracted to pay for the timber different prices from those which they claimed he agreed- to pay; that the total amount of various timber landed at the mill was only 141,655 feet; that the final delivery of the logs, after the same had been sawed into lumber at the mill, was agreed by the plaintiffs to be made at Elcho and not at the sawmill of McNinch; and that because of plaintiffs’ refusal to haul the lumber, manufactured from said logs, from the mill to Elcho, he was compelled to haul the same at an expense of $750, for which sum, by way of counterclaim, he demanded judgment against the plaintiffs.
    
      The jury returned the following special verdict: (1) that the contract between the plaintiffs and the defendant was that they should sell to him and make completed delivery at Mc-Ninch’s mill of their pine logs for the price of $15 per thousand, their birch logs for $13 per thousand, and their basswood logs for $14 per thousand, log scale; (2) that the quantity •in log scale of each of the following kinds of plaintiffs’ logs landed at McNinch’s mill was there sawed for the defendant, viz.: pine logs, 38,156 feet; birch logs, 14,276; basswood logs, 105,886; and elm logs, 18,957; (3) that the reasonable market value of elm logs of the grade of those delivered by plaintiffs to defendant while the same were at McNinch’s mill in March, 1910, was $9 per thousand; and (4) that it was not the contract between plaintiffs and defendant that the former should for the price of $16 per thousand feet log scale for pine, $14 per thousand feet log scale for birch, $15 per thousand feet log scale for basswood, seE their logs to defendant, haul the same to McNinch’s mill to be sawed, and take the lumber from the mill and deliver the ■ same to defendant at Elcho.
    The court gave the plaintiffs the option of a new trial or judgment for ten per cent, less than the amount of timber found by the jury. The plaintiffs accepted the latter, and judgment was entered upon the verdict as so amended. From such judgment the defendant appealed.
    Eor the appellant there was a brief by Goodrich & Goodrich, and oral argument by A. B. Goodrich.
    
    
      H. F. M. or son, for the respondents.
   ViNje, J.

Two disputed questions of fact arise upon this appeal, namely, the place of delivery of the logs and the amount delivered. Plaintiffs claim the contract called for delivery at McNinch’s mill, while defendant’s contention is that the logs were to be delivered by plaintiffs at the mill, were then to be sawed and the lumber piled by plaintiffs, and then hauled by them from the mill to the railroad at Elcho, distant about nine miles from the mill. The contract was an oral one and there is a direct conflict in the testimony of the parties as to place of delivery. As circumstances tending to corroborate the defendant’s claim, our attention is directed to the fact that logs sold for considerably less at Elcho, and that it is unreasonable to suppose an experienced lumberman like the defendant would pay four or five dollars per thousand more for logs at the mill than he could buy them for at the railroad at Elcho. Plaintiffs’ answer to this is that defendant was getting a select grade of logs, called veneer logs, and that they were worth much more than the average run of logs. The evidence as to the grade of logs received by the defendant sustains plaintiffs’ claim. A number of other corroborating circumstances are adduced by both parties to strengthen their respective versions of the contract. But the above is sufficient to show their general nature and the total variance of the evidence as to place of delivery. Where the direct evidence as to a disputed fact is conflicting and the corroborating circumstances in favor of the verdict are as persuasive as those against it, the verdict must stand.

Plaintiffs’ evidence showed the total quantity of logs delivered to be 177,215 feet, while defendant’s evidence showed it to be only 141,655; that of plaintiffs was based upon their logs scale in the woods, which was shown by a rescale of a portion of the logs at the mill to be somewhat too high; that of defendant, by a scale made by him at the mill. It appears that plaintiffs and defendant rescaled about 129,000 feet upon which they agreed; that in making such rescale they were often unable to agree as to the scale of a log; that such log was then marked “box,” and it was claimed by plaintiffs that sound lumber from such box logs went to defendant and the unsound to them, and also that a quantity of logs delivered were not scaled jointly by the parties. The dispute arose, therefore, mainly as to the quantity of lumber which tbe defendant received from tbe box logs and tbe quantity not scaled jointly. Defendant admits be scaled at least 13,000 feet wben plaintiffs were not present. Tbey claim be scaled more, and that be received at least 21,000 feet out of tbe box logs. Tbe jury found tbe full amount of plaintiffs’ log scale in tbe woods. Tbe trial court was of tbe opinion tbat tbe amount so found was too large and gave plaintiffs tbe option of a new trial or judgment for ten per cent, less tban tbe amount found by tbe jury. It would be unprofitable to review in detail tbe alleged errors in tbe scales of tbe respective parties. Tbe evidence of neither side as to tbe exact quantity of logs delivered is very certain and definite. Suffice it to say, however, tbat it is sufficient to support tbe verdict as amended by tbe court.

Tbe court instructed tbe jury: “In case you should be of tbe opinion from tbe evidence tbat as to any of these logs tbe plaintiffs and tbe defendant together made a scale and agreed thereon, then you may accept such scale as a correct one.” It is claimed tbe true rule is tbat an agreed scale is binding upon tbe parties and tbat tbe court should have so instructed tbe jury. Undoubtedly tbat is tbe law, and such scale cannot be impeached except for fraud, mistake, prejudice, or neglect. Early v. Chippewa L. Co. 68 Wis. 112, 31 N. W. 714; Stubbings v. McGregor, 86 Wis. 248, 56 N. W. 641; Peterson v. South Shore L. Co. 105 Wis. 106, 81 N. W. 141. This case, liowever, like that of Magee v. Smith, 101 Wis. 511, 78 N. W. 167, is one to which tbe rule does not apply. It is uncontra-dicted tbat tbe scale of 129,000 feet was agreed upon. Indeed, defendant admits tbat be received 141,655 feet. So it will be seen tbat the agreed scale falls within what defendant admits be received and tbat tbe dispute arose as to tbe balance. Any error, therefore, in tbe instruction as to tbe agreed scale could not affect tbe jury’s finding as to bow much more tbe defendant got. Since by bis own admission be received more than tbe agreed scale, tbe jury would take tbe amount admitted by him to be the least number of feet delivered, and would be concerned only in determining how much more, if any, he received. By admitting the receipt of 141,655 feet, the agreed scale of 129,000 feet of part of the logs was eliminated. The only question that remained was, How much more than the amount admitted by the defendant, if any, did he receive?

It is urged the court, in reducing the verdict by ten per cent., did not adopt the true rule, namely, reduce it to an amount below which an impartial jury would probably not place it upon a retrial. In his opinion the judge says: “All together I am convinced that another jury, fairly, impartially, and logically considering the evidence, would probably find the amounts of different kinds of logs to be less than plaintiffs’ scale and more than defendant’s scale, and would probably fix the amounts as low as ninety per cent, of plaintiffs’ scale,” and the case of Heimlich v. Tabor, 123 Wis. 565, 102 N. W. 10, is referred to by him. It seems clear from the language of the judge, taken in connection with the case to which he re fers as a guide, that he had the true rule in mind and adopted it in reducing the verdict.

Defendant counterclaimed for the expense of piling the lumber at the mill and hauling the same to Eleho, set out an account consisting of about thirty-two items, and moved for a reference. The motion was denied and error is alleged because of such denial. It was held in Hart v. Godkin, 122 Wis. 646, 100 N. W. 1057, that the granting or denying of a motion for reference was a matter resting in the sound discretion of the trial court. To the same effect is McCormick v. Ketchum, 51 Wis. 323, 8 N. W. 208. We see no ground for disturbing the exercise of such discretion, especially in view of the fact that the verdict eliminated the counterclaim.

Costs were taxed in the sum of $36.15. This is admitted by respondents to be $11.15 more than the statute allows, and they are willing that the excess should be deducted from the judgment, tbougb no motion to retax was made in tbe trial court. Tbe judgment is modified by deducting therefrom tbe sum of $11.15, and as so modified is affirmed, with costs to' respondents.

' By the Gowrt. — Judgment modified by deducting therefrom $11.15, and as so modified affirmed, with costs to r&-spondents.  