
    Christopher, Respondent, vs. Jerdee, Appellant.
    
      January 28
    
    February 18, 1913.
    
    
      Justices’ courts: Loss of jurisdiction by adjournment: Waiver: Bail-ments: Storage of hay: Lien: Demand: Evidence: Value of storage: Competency of witness: Appeal: Reversal: Option to take judgment for smaller amount.
    
    
      1. The objection that a justice’s court lost jurisdiction by an adjournment contrary to law was waived by the subsequent voluntary appearance of the parties and trial upon the merits.
    2. Undisputed evidence that defendant’s hay was placed in plaintiff’s barn by a third person without any fault on plaintiffs part and was cared for by him, and that defendant did not remove or offer to remove it, although he knew the facts and had been notified that unless it was removed he would be charge'd for storage, established plaintiff’s right to recover the reasonable value of such storage.
    3. Although plaintiff had no lien in such case for the storage. charges, he was not bound to deliver the hay to one who made no unqualified demand for it but only proposed, under authority from defendant, to take it away if there were no storage charges on it.
    4. In an action to recover for storage of hay, a witness who testified that he was acquainted with the location and the value of storage at the place in question and in that vicinity was competent to testify as to such value, although he further testified, that he did not know of any storage being paid at that point.
    5. In an action to recover for the storage of hay, upon reversing a judgment for plaintiff because of the improper exclusion of competent evidence as to the value of such storage, this court,, in view of the small amount involved, gives plaintiff the option to take judgment for the smallest amount the jury would have been warranted in giving him if such evidence had been admitted.
    Appeal from a judgment of tbe circuit court for Polk county: EraNK A. Ross, Circuit Judge.
    
      Reversed.
    
    Plaintiff brought an action in justice’s court on contract to recover for storage of bay left in bis barn. Tbe answer was in effect a general denial. Plaintiff recovered judgment. Defendant appealed to tbe circuit court. Tbe circuit court directed a verdict for plaintiff on all questions except as to-amount of damages and submitted that question to tbe jury. Tbe jury found damages $45, for wbicb sum and costs judgment was entered for plaintiff. Defendant appealed to tbis court.
    Eor tbe appellant tbe cause was submitted on tbe brief of Morn P. Jerdee, in person.
    Eor tbe respondent there was a brief by R. D. Planding and Frank B. Dorothy, and oral argument by Mr. Dorothy.
    
   KeRwiN, J.

Tbe evidence shows that tbe appellant employed one Elmblad to press bay on appellant’s farm at Dresser Junction, Wisconsin; that Elmblad was under bis employment to press tbe bay and put it on board oars at Dresser Junction; that a quantity of tbe bay was pressed and loaded; that about two tons of tbe bay pressed in bales was left on appellant’s farm for a short time, and afterwards and on March 29, 1910, Elmblad went to appellant’s farm without the knowledge or consent of appellant and removed tbe bay left there and placed it in respondent’s bam at Dresser Junction. On tbe following morning, March 30th, Elmblad notified appellant that tbe bay bad been placed in respondent’s bam. Appellant then stated to Elmblad that be had no authority to do so and that be would bold all who bad taken tbe bay responsible, and on tbe same day called on respondent and asked him whether tbe bay was appellant’s, and if so to return it. Bespondent then asked appellant to remove tbe bay and stated if be did not be would charge fifteen cents a day storage. Appellant said tbe bay was not put in respondent’s barn with bis consent and that be would not pay storage.

There is evidence that tbe appellant at different times requested respondent to return the bay, if it belonged to appellant, and that some months after tbe bay was placed in respondent’s bam tbe appellant, having sold bay to one Eck-strom, informed tbe latter that be might have tbe bay on respondent’s farm for tbe same price that be sold other bay to Mm provided respondent would not charge storage, but if respondent demanded storage to leave it alone, but that tbe bay-in respondent’s barn was to be included in tbe sale if respondent did not charge storage. It is quite plain that appellant understood tbe bay belonged to him and be did not offer to remove it, but let it remain in tbe respondent’s'barn for about tMrteen months. Tbe evidence also establishes that tbe bay did in fact belong to appellant.

1. A question is raised by tbe appellant respecting tbe jurisdiction of tbe court on tbe ground that fhe justice’s court lost jurisdiction by an adjournment contrary to tbe statute, and therefore that tbe circuit court acquired no jurisdiction on appeal. Tbe point is not well made. Conceding, without deciding, that the justice lost jurisdiction by tbe adjournment, tbe point was waived by voluntary appearance thereafter and trial upon tbe merits before tbe justice. This is well settled.

2. Error is assigned because tbe court refused to nonsuit tbe respondent and in refusing to direct a verdict for defendant, and also in directing a verdict for respondent on all questions except damages. These errors may be treated together. Tbe evidence upon tbe right of recovery for the reasonable value of tbe storage is practically undisputed, and we are of opinion that tbe court below was right in bolding that respondent made a case for tbe recovery of some amount.

Point is made by appellant that tbe respondent refused to deliver tbe bay until Ms storage charges were paid, on tbe ground that respondent claimed to have a lien for storage, and that be bad no lien. We agree with appellant’s contention that respondent bad no lien. Story, Bailm. secs. 121, 122; Rivara v. Ghio, 3 E. D. Smith, 264; Lyungstrandh v. William Haaker Co. 16 Misc. 387, 38 N. Y. Supp. 129; Dale v. Brinckerhoff, 7 Daly, 45; Alt v. Weidenberg, 6 Bosw. 176. But it does not appear from tbe evidence that tbe respondent refused to deliver tbe bay until bis storage charges were paid, and in fact no unqualified demand upon respondent for the hay and refusal by him was shown. True, appellant demanded that respondent carry the hay back to appellant’s farm, and also authorized Eckstrom to take the hay if there were no storage charges on it. But appellant did not authorize Eckstrom to make an unqualified demand for the hay. The lien and the storage charges were quite different things. Eespondent might have storage charges which he did not choose to relinquish, yet have or claim no lien. So the evidence establishes without dispute that the appellant’s hay was placed in respondent’s barn without any fault on his part and cared for by him, and appellant did not remove or offer to remove it though he had knowledge of the facts the day after it was placed there, and was notified that if he did not remove it he would be charged storage. Under those circumstances the ruling of the court below under this head was right.

3. Error is assigned in the exclusion of evidence on the question of damages. The respondent made proof of damages tending to support the amount found by the jury. The appellant offered his own evidence to the effect that the storage was reasonably worth only $1 per month. This evidence was objected to on the ground that appellant was not qualified to testify on the subject, and ruled out. So the case was left to stand substantially on the evidence on the part of plaintiff alone. The evidence of appellant offered was proper and it was prejudicial error to exclude it. The appellant, after testifying that he had heard the testimony of plaintiff relative to the value of the storage in question and that he was acquainted with the value of storage room for the hay at the place in question, the location of the barn, and its use, further testified that he did not know of any place at Dresser Junction having been rented for storage of hay at the time of trial, but that he did know that there had been hay stored there; that he did know the fair value for storage of the hay in question per month from the 29th day of March, 1910, up to tbe commencement of tbe action. Tbe witness then testified that $1 per month would be a fair value for tbe storage. This answer was stricken out by tbe court. This ruling was clearly error prejudicial to appellant. Tbe court below appears to have been laboring under tbe impression that because tbe witness testified, in reply to questions asked, that be did not know of any storage being paid at that point, be was not competent to testify on tbe question of value of storage. But tbe witness testified that be was acquainted with tbe location and tbe value of storage at Dresser Junction and that vicinity. This was sufficient to qualify him to testify on tbe subject.

It appears from tbe record that about thirteen months elapsed from tbe time tbe bay was put in respondent’s barn until tbe commencement of this action. In view of tbe small amount involved, we have concluded to give tbe plaintiff tbe option to take judgment for tbe smallest amount tbe jury would have been warranted in giving him if tbe evidence ruled out bad. been admitted, namely, $1 per month for thirteen months, $13, and let tbe judgment be modified accordingly. And in ease plaintiff fails to consent to- such modification of tbe judgment a new trial is granted.

By the Court. — Tbe judgment of tbe court below is reversed, and tbe action remanded for a new trial, unless tbe respondent shall, within twenty days from notice of tbe filing of tbe remittitur in tbe court below, file bis consent with tbe clerk of tbe court below to remit all damages exceeding $13, in which case judgment shall be rendered for tbe plaintiff for that sum with costs. Tbe appellant is entitled to costs in this court.  