June Term, 1860.

#### Ranney and another vs. Higby.

The construction or legal effect of the contract between the parties in this case, has been settled by former adjudications. 4 "Wis., 154; 5 id., 62; 6 id., 28.

Where it became necessary on a trial, for the plaintiff^ to produce and offer to the defendant a certificate of the receiver of an insurance company, showing the allowance of a claim for loss of certain salt, shipped by plaintiffs to defendant, and lost in a storm, and the plaintiffs, on the trial, produced the *62certificate of said receiver, showing the allowance of a claim, but stating that it was for loss and damage by *fo'e>*on a marine policy, and there was some evidence before the jury tending to show that the certificate was the identical one issued for the loss of said salt: *Held,*that the recital in the certificate as to the cause of the loss, was not conclusive evidence that the claim certified to, did originate in a loss by fire, and an instruction to that effect, asked for by the plaintiffs, should have been given.

Plaintiffs sent to defendant a statement of their account, containing sundry charges, giving defendant credit for sundry payments, and showing a balance due the plaintiffs of about $400: *Held,*that plaintiffs were not bound, in bringing suit, to declare for the balance of the general account so exhibited, but might select a single item in their account not larger in amount than such balance, and sue therefor; especially as it appeared that the item selected was the only one in the whole account, about which there was any dispute between the parties.

APPEAL from the Circuit Court for *Milwaukee*County.

A full statement of the facts out of wlicli this suit arose, may be found in 4 Wis., 154; 5 id., 62; and 6 id., 28; and it is deemed necessary to state here only so much of the evidence presented on the last trial, as gave rise to questions not previously decided by the supreme court in this case. The action was *assumpsit,*to recover the price of 350 barrels of salt, sold by the plaintiffs to the defendant, and shipped from Buffalo for Milwaukee, per schooner J. Patton, and lost on the voyage, in a storm. Declaration, the common counts for goods sold, with bill of particulars. Plea, general issue. The plaintiffs had been requested by the defendant to insure the salt for their benefit, and they caused it to be insured in the Utica- Insurance Company, insuring at the same time some salt shipped by them on the same vessel to one *McKay.*The Insurance Co. adjusted the loss on both shipments, and gave their acceptance of *Banney & Oo.'s*draft for $643 75, the amount of both losses, payable May 25th, 1852. The Insurance Co. failed before maturity of the draft, and its assets were placed in the hands of Geo. S. Dana, receiver, who issued to *Banney & Oo.*a certificate, dated Jan. 14th, 1853, stating that they had exhibited to him a claim against the Utica Ins. Co., for loss and damage by fire of certain property, under a *marine*policy of said company, and certifying that said claim was allowed at $643,75, as of *May 25ih,*1852; the words in italics, and the figures, being written, and the rest of the certificate being in print. The following' *63indorsement was on tire back of the draft; “ Certificate given for this draft, January 14th, 1853, for $643,75. Geo. S. Da-jna, Receiver.” On the trial, the plaintiffs’ counsel produced, and offered to the defendant, the abovementioned draft and certificate, subject to *McKay's*interest therein, which defendant refused to receive, but read them in evidence.

A question was made before the jury, as to whether said draft and certificate were the identical ones which plaintiffs had received on account of the loss of said salt; and instructions were given by the circuit court to the jury, upon that question, which will be found stated sufficiently in the opinion of the court. There had also been other dealings between the parties, and the defendant introduced on the trial, a statement of accounts, which the plaintiffs had sent to him under date of January 31st, 1852, which contained sundry charges for salt shipjsed to the defendant, including that shipped by the *J.*Patton, and for insmance and interest, amounting in all to $3,076,09; and gave the defendant credit for three drafts, one for $1,500, one for $800, and one for $400, striking a balance in favor of the plaintiffs, of $401,98; and also another statement of account sent to them by the plaintiffs, May 26th, 1852, in which the defendant was debited as follows:

1852: — ■

Jan. 31. — To balance of account rendered, $401 98 .

To paid protest, etc., . . 1 70

June 1.- — -To five months’ interest on balance of account, . . 9 37

$413 05

The circuit court, at the request of the defendant, instructed the jury, among other things, as follows: 1. That the plaintiffs cannot, in this action, recover a general balance of account, and if the jury find that a draft was drawn against the value of the salt by the plaintiffs on the defendant, and was paid by the defendant, then the plaintiffs cannot recover, although there may be a general balance of account in their favor. 2. That if, in this case, an account existed between *64tbe plaintiffs and defendant, and it appears to tbe jury tbat payments by tbe defendant have been made to a larger amount tban tbe item sued for, tbe plaintiffs cannot recover. 3. Tbat wben tbe plaintiffs select certain items of a running-account, and bring suit upon sucb items, it amounts, for tbe purposes of tbe suit, to a waiver of tbe other items; and upon proof by tbe defendant, of payments applicable to tbe entire account, to a larger amount tban tbe item sued upon, be is entitled to a verdict.

To these instructions-' tbe plaintiffs excepted. Tbe jury found for tbe defendant, and from tbe judgment on tbe verdict, this appeal was taken.

*Smith & Salomon,*for appellants.

*Ogden, Brown & Ogden,*for respondent:

Although there might have been a balance, on tbe general account between tbe parties, due to tbe plaintiffs, they have not sued for sucb balance, and cannot recover it in this action. There was a running account between tbe parties, upon which tbe drafts were credited, and a general balance struck by tbe plaintiffs. This was binding upon them, and they could not select from this general account a single item upon which to sue. Tbe payments were made as well upon tbat item as all others; tbe act of tbe plaintiffs, in suing upon tbat item alone, amounts to an abandonment of all tbe others; and if payments applicable upon tbe entire account are proved to" an amount exceeding tbe item sued on, tbe plaintiffs cannot resort to tbe items not declared on, to increase then- claim. Tbe defendant has a right to notice, by tbe declaration, of tbe entire claim, so tbat be may disprove any item tbat is wrong.

June *4.*

*By the Court,*

DIXON, C. J.

This is tbe fourth time this case has been before this court. Whatever might have been our views as to tbe construction and effect of tbe original contract between tbe parties, were tbe question *res integr'a,*it must now, in view of tbe former adjudications, be regarded as *res adjudícala.*

By those adjudications, (4 Wis., 154, 5 id., 62, and 6 id., 28,) it is established tbat there was an absolute contract *65"between them, upon which, the defendant was liable to pay the plaintiffs for the salt, notwithstanding it was lost *in*transitu, unless the defendant could show that they had received payment by the money secured upon the policy of insurance; and that the defendant is entitled to the acceptance of the insurance company, for the amount of the loss as adjusted by the plaintiffs. This last proposition seems to establish also, that the defendant is entitled to the certificate of the receiver of the insurance company given for the acceptance, and noted on the back of it. We do not propose to enter into any discussion of the correctness of either of these propositions. Upon the trial, the plaintiffs complied with the last, both with respect to the acceptance and certificate, provided those produced and offered to the defendant were the same received by the plaintiffs, upon which some doubts were raised. Without giving our own impression, formed [from the evidence as it appears before us, upon this question of identity, we think that the circuit judge erred in refusing the ninth instruction asked by the plaintiffs’ counsel, to-wit: *that the fact that the words, “loss or damage by fire," are found in the certificate of ike receiver, is not conclusive evidence that the claim certified originated in a loss by fire.*It certainly needs no argument or citation of authorities to show that such recital in the certificate was not conclusive, and that it might be shown that it was not a loss by fire, and that it was so recited by mistake. It is contended by the counsel for the defendant, that the error committed by this refusal, was rectified in a subsequent portion of the charge, where, he says, it was in substance given. We do not think so. The instruction asked, which was correct, was plainly and pointedly refused. The subsequent instructions, in which the jury were told, that in determining the question of identity, they could consider as strong circumstances, the coincidence of dates, names, signatures, amounts, &c., it is true, look as if it was intended to submit to them the question of identity, notwithstanding the recital; yet from the manner in which they were given, we do not think they were calculated completely to remove from the minds of the jurors, the impression which they *66must bave received from such refasal. Tbe jury were not directly told, tbat if, in tbeir opinion, from tbe evidence before tbem, tbe draft and certificate were given in settlement for tbe loss of tbe salt, then tbeir verdict should be for tbe plaintiffs. Indeed, some portions of tbe subsequent instructions seem to bave an opposite tendency. They were told tbat there was no explanation of tbe mistake in tbe certificate, unless, indeed, they could draw it from tbe face of tbe draft, and other parts of tbe certificate, and tbat they must take all written instruments in tbeir plain and obvious meaning. This language can hardly be said to be equivalent to giving tbe instruction asked by tbe plaintiffs’ counsel.

Tbe only other feature in which tbe case differs from what it was when heretofore before this court, grows out of tbe introduction in evidence of tbe statement of account, furnished by tbe plaintiffs to tbe defendant, in tbe letter of January 31st, 1852. Tbe letter in which tbe balance claimed to be due is stated, and in which it is said tbe account is inclosed, was in evidence, as appears from *the*case reported in 5 Wis. We do not see bow this varies tbe case. It is contended tbat tbe draft of $1500 appearing as a general credit in this statement of accounts, is conclusive proof as against tbe plaintiffs, tbat tbe moneys received upon it were applied generally to tbe account, and tbat tbe plaintiffs could not afterwards select a single item, less in amount than tbe general balance claimed to be due, and sue upon it, but must sue, if at all, for such balance. If this question is not to be regarded as settled by former adju.dications in this case, still we do not think tbe proposition is correct particularly where, as in this case, it appears tbat tbe selected item sued upon, is tbe only one in the whole account about which there is any dispute between tbe parties. Certainly tbe defendant cannot complain at this course of proceeding. He is not wronged by it. If after having furnished such statement, tbe plaintiffs bad sought to apply tbe payment to tbe disputed or doubtful item, and bad then brought suit upon one about which there was no dispute, thus endeavoring to shun an investigation of tbe *67doubtful item, there would be some reason for the rule. But here there is none.

The judgment must be reversed, and a new trial awarded.