Kelly vs. Berry and others.

LYON, J. On the question whether the logs were transferred by the plaintiff to the defendants through Coon & Barlow's satisfaction of the contract, as alleged in the answer, there is a conflict of testimony. The question was fairly submitted to the jury, and they answered it adversely to the defendants. We cannot say that it was wrongly determined.

The learned circuit judge instructed the jury that if, when the undertaking of Coon, Barlow, North, Baldwin and the bank, was delivered to the defendants, they made no further objection to receiving the logs on account of the liens thereon," but were satisfied on that point and willing to receive them under such circumstances, but then refused to receive them because they were not such logs as the contract called for," then, if the logs were in fact such as the contract called for, the plaintiff could recover, otherwise not. We think this instruction correctly states the law of waiver as applicable to the case. Manifestly, if the plaintiff, when he offered to deliver the logs, secured the defendants to their satisfaction against liens, and removed their objections to accepting the logs because of such liens, and the defendants refused to accept them on the sole ground that the logs were defective in quality, they ought not to be permitted to excuse or justify such refusal by asserting the existence of the liens.

In the course of his charge to the jury, the judge said: "I think the defendants could have safely taken a delivery of the logs, the mark being recorded in their name, but would not be compelled to pay any portion remaining unpaid on the contract until the liens against logs had been discharged, and by taking a delivery of them from Kelly they could be made liable to the parties having liens to the amount of the value of the logs only." This is claimed to be error. But whether it implies an unsound legal proposition, or not, it seems to be a mere casual remark, and of little importance in the case. The judge did not say that the defendants were legally bound to accept the logs notwithstanding the liens, but only that he

Kelly vs. Berry and others.

thought they might have accepted them with safety; and we think the fair construction of the charge is, that the defendants were not bound to accept the logs subject to the liens, unless they waived the right to make that objection. We do not perceive how the jury could have understood the charge differently. Hence, the remark above quoted cannot, in any view of the case, work a reversal of the judgment.

It appeared that a small portion of the logs in question scaled less than four to the M. feet; that is to say, they averaged less than 250 feet each. The evidence tends to show that the price of these logs was fixed by the surveyor general specified in the contract at $8 per M. feet; and that he appraised them from the scale bills, without an actual inspection of the logs. He testified that he was able to determine the sizes of the logs from the scale bills in his office, and to fix the comparative value of the small logs, if not required to consider the quality thereof. The scale bills were verified by other testimony. The judge refused to give an instruction prayed on behalf of the defendants, to the effect that, unless waived by the defendants, the contract required that the surveyor general should make an actual inspection of the logs before appraising them.

The contract implies that all of the logs to be delivered under it were to be of merchantable quality, and the parties evidently contemplated that the comparative value of the small logs should be determined on that hypothesis. If so, no inspection was necessary. It seems to us that the simple problem submitted to the surveyor general, by the contract, was this: On the basis of $10.50 per M. feet for merchantable logs which will average 250 feet each, what is the value of those merchantable logs which the scale bills show average less than 250 feet each? The scale bills showed the size of the logs to be appraised, and the contract furnished a complete basis for making the appraisal, without an actual inspection. For these reasons, and because the contract contains no ex

VOL. XXXIX. — 43

Matthews and wife vs. The Town of Baraboo.

press provision requiring the surveyor general to inspect the logs, we conclude that the judge properly refused the proposed instruction.

We discover nothing further in the charge, or in the refusal of the judge to give instructions asked on behalf of the defendants, which requires special notice.

On the trial many exceptions were taken on behalf of the defendants to the rulings of the court on objections to the admission of testimony. Many of these are disposed of by the views above expressed, and many others are quite unimportant. It is unnecessary to discuss or even state these rulings. It is sufficient to say that we fail to find in any of them cause for reversing the judgment.

By the Court.-Judgment affirmed.

MATTHEWS and wife vs. THE Town of Baraboo.

VARIANCE. AMENDMENT.

(1) Amendment at trial. When variance

waived and when disregarded after verdict.

HIGHWAYS. (2) Extent of liability of towns for defective highways.

1. The complaint for injuries caused by a defective highway charged the accident to a rock or stone, and the evidence, taken without objection, tended to show that the accident resulted from a stone, or rut, or both. Held,

(1) That if the question of variance had been raised on the trial, by objection to evidence of the rut, plaintiffs should have been permitted to amend according to the fact, before verdict.

(2) That the question of variance, not having been raised on the trial, was waived by the defendant, and could not be raised after verdict. So held where the defendant attempted to raise that question by exceptions to the charge, taken (under the statute) during the term, but after the jury was dischar d.

(3) That if the complaint had not been amended after verdict, the judgment could not have been reversed for the variance, and such amendment

Matthews and wife vs. The Town of Baraboo.

therefore worked no injury to the defendant; and an affidavit of surprise made by defendant after verdict, pending a motion for a new trial, and before the allowance of such amendment, was too late for any purpose except as an appeal to the discretion of the court below on the motion for a new trial.

2. A town is liable for defects anywhere in the worked and traveled part of a highway, although the same may be wide enough for three or four teams abreast.

* *

*

*

APPEAL from the Circuit Court for Sauk County. Action for damages for injury to the plaintiff's person, caused by a defective highway. The complaint, as amended, alleges that the defendant had "allowed, carelessly, negligently and unlawfully, a large rock or stone and a rut to be and remain in one of the most public highways in defendant's town, * and that one of the forward wheels of said wagon in which said plaintiff was riding so as aforesaid, suddenly struck said rock, or stone, or dropped into said rut,” whereby the plaintiff was injured, etc.; but the words in italics were first inserted by amendment after verdict for the plaintiff. Among other instructions the court gave the following: "There seems to be no doubt that the plaintiff, at the time alleged and upon the highway in question, and [at the] place in question, fell out of the wagon in which she was riding with her brother and sister, and was considerably injured. Whether or not she was thrown out by reason of the defect, a stone, a rut, or both in the highway, amounting to a defect which should render the town liable, is a question of fact for you to determine."

After verdict for the plaintiff, and while a motion for a new trial was pending, an affidavit of one of the supervisors of the defendant town was submitted, stating, in substance, that the defendant had no notice or knowledge of any defect in the highway except the stone complained of, and that the proof as to the rut was a surprise. The attention of the court was then for the first time called to the fact that the only defect

Matthews and wife vs. The Town of Baraboo.

of the highway alleged in the complaint was a stone. The complaint was then amended as above stated.

From an order denying a new trial, the defendant appealed. C. C. Remington, for appellant, argued that as the stone in the highway was the only defect complained of, the question of any other defect ought not to have been submitted to the jury. Ferguson v. Porter, 4 Fla., 102; Sayre v. Townsend, 15 Wend., 647; Wardell v. Hughes, 3 id., 418. The amendment, if allowed at all, should have been upon terms of the respondents relinquishing the verdict, paying the costs, and taking a new trial. This case, in view of the affidavit of surprise, is a much stronger one for imposing such terms than Pierce v. Northey, 14 Wis., 9.

J. W. Lusk, for respondents:

The amendment was properly granted, it being evident that the defendant could not have been misled. Danley v. Williams, 16 Wis., 585; Muzzy v. Ledlie, 23 id., 447; Bowman v. Van Kuren, 29 id., 214; 34 id., 380; 30 id., 378; Brayton v. Jones, 5 id., 117, and Dixon's notes, p. 629. 2. The motion to amend the complaint was addressed to the discretion of the court, and is not reversible on appeal. Van Duzer v. Howe, 21 N. Y., 539; Gillett v. Robbins, 12 Wis., 330.

RYAN, C. J. The complaint, before amendment after verdict, charged the defect of the highway, and the resulting accident, to a rock or stone. Witnesses attributed the accident to a stone and to a rut; some to the one, some to the other, and some to both. All this testimony was taken without objection; no exception whatever to evidence appearing in the bill of exceptions. This not unnaturally led the learned judge of the court below to think the complaint broad enough to cover both stone and rut; and so he charged the jury. The variance between the pleading and the proof appears not to have been pointed out to him, until after verdict; the exceptions to the charge being taken, under the statute, during the term, but after the jury had been discharged.