#### Remington vs. Bailey.

In an action for the conversion of property, the defendant cannot introduce proof to show that the plaintiff acquired the property under a sale which was fraudulent as to creditors, unless the defendant is himself a creditor of the plaintiff’s vendor, or has succeeded to the rights of a creditor.

The plaintiff in such an action, haviug testified that certain timber in controversy was his, and that he *got3it*out under a written contract of a certain date made by him with one F. for the building of a barn, which contract was mislaid and could not be produced, it was competent for the defendant, who had put the plaintiff’s title in issue, to introduce in evidence a written contract between the plaintiff’s brother and F., made about the same date, for getting out the same quantity andkind of lumber; as such proof — there being no pretense that F. made two contracts, one with each — might properly be considered by the jury in determining the degree of credit to be given to the plaintiff’s testimony.

Where improper evidence has first been admitted, though objected to, and the jury have afterwards been directed by the court not to consider it, the admission furnishes no ground for a new trial, unless it appears that the verdict was improperly influenced thereby.

But where this court is not satisfied that the verdict of the jury was based wholly upon the other evidence and uninfluenced by the evidence thus improperly admitted, it will reverse the judgment and award a new trial.

*333ERROR to the Circuit Court for *Dane*County.

Action to recover a lot of timber alleged to have been lawfully taken and detained by the defendant. The plaintiff testified that he got out the timber under a written contract made by Mm with one Falkner for building a barn, and that the contract had been mislaid and he did not know where it was. The case is otherwise sufficiently stated in the opinion of the court.

*Carpenter &*Sprague, for plaintiff in error:

The evidence offered by the defendant on the examination of the plaintiff, was improperly admitted, no foundation having been laid for it either in the answer or in the evidence before offered. *Jones et al. vs. La7ce,*2 Wis., 210. 2. Though subsequently withdrawn by the court from the consideration of the jury, its effect remained on their minds. It is sufficient ground of reversal that injustice *may*have been done the plaintiff by its admission. *Haswell vs. Bussing,*10 Johns., 128 ; *Penfield vs.*Carpender, 13 id., 350; *Irvine vs. Coolc,*15 id., 239; *Tuttle vs. Hunt,*2 Cow., 436*; Mrben vs. Lorillard,*19 1ST. Y., 299. It is for the defendant to show that it was not injurious to the plaintiff. *Nickerson vs. Morin,*3 Wis., 243. 3. The contract between Henry W. Remington and Falkner was improperly admitted, because irrelevant.

*D. C. Bush,*for defendant in error:

All the evidence which the court permitted the jury to consider was strictly within the rule for cross-examination. 1 Green!, §§ 446-7; 4 Wharton, 339. 2. The verdict depended upon the credibility of the plaintiff as a witness, and the jury had aright to discredit him. 8 Pick., 126 ; 18 id., 15; 4 Wharton, 150.

January 8.

*By the Court,*

Dixon, C. J.

This was a suit in the nature of an action of trespass, brought by the plaintiff in error against the defendant in error, to recover damages for the taking and conversion of a quantity of square timber and braces, which had been prepared as the frame of a bam, and some planks and unwrought timber. The complaint was in the usual form of complaints in such actions. The answer was a general denial of each and every allegation con-*334“-^he complaint. Upon the trial on the circuit, before tbe court and a jury, tbe plaintiff appeared and testified as a witness in his own behalf; and it was upon bis testimony principally tbat tbe action was sought to be sustained. After giving evidence tending to show tbat tbe property in dispute was bis, and tbat tbe defendant unlawfully took and converted it to bis own use, be was, upon cross-examination, interrogated at some length as to bis dealings and business relations with bis brother, Henry "W. Remington. One object of these interrogatories appears to have been, to establish tbat Henry W. Remington was tbe real party in interest, or owner of tbe timber and planks, by showing tbat tbe contract under which tbe same were procured, was made by him with one Ealkner, for whom tbe frame and materials were originally designed, but who bad subsequently, and before tbe alleged conversion, forfeited and abandoned bis agreement. Tbe questions furthermore evince a desire or intention to impeach tbe alleged title of tbe plaintiff, by showing tbat tbe timber was cut upon land purchased by him of Henry *W.,*and tbat such purchase was fraudulent and void as to tbe creditors of tbe latter. Tbe examination in chief laid no foundation for a cross-examination of this kind, and tbe questions put were severally objected to by tbe plaintiff’s counsel, but tbe objections were overruled and tbe witness required to answer. To these decisions of tbe court tbe plaintiff’s counsel excepted. After considerable progress bad been made and several facts elicited, the judge, becoming convinced tbat tbe examination was improper, put an end to it, and directed tbe jury not to consider tbat portion of tbe evidence which bad thus been admitted.

On bis direct examination tbe witness testified that tbe timber and planks in question were procured by him in fulfilment of a contract which be bad made with Ealkner for tbe building of a barn. Afterwards, during tbe trial, tbe execution of a contract in writing between Henry "W. and Ealkner was proved, and tbe contract offered and received in evidence. To this tbe plaintiff’s counsel took exception. On tbe part of tbe defendant little orno evidence was offered, except as to tbe quantity and value of tbe timber taken. *335The defendant was examined as a witness, and acknowledged taking the timber, but said he purchased it at a sheriff’s sale. No evidence was given concerning this sheriff’s sale. It does not appear what kind of a sale it was, or for or against whom it was made. The jury found a general verdict for the defendant.

The record presents two questions for our consideration; one as to the effect of first admitting and then excluding the evidence given on the cross-examination of the plaintiff, and the other as to the admission of the contract between Henry W. Remington and Falkner.

Upon the first it is very clear that the court was wrong when it admitted, and right when it excluded the evidence. The pleadings laid no foundation for the introduction of any such evidence. For conceding that the transfer of property from Henry W. to the plaintiff was fraudulent and void as to the creditors of the former, yet the defendant was in no position to take advantage of the fraud. His answer did not aver that he was a creditor, or the representative of a credit- or of Henry W., claiming title to the property under him; and one or the other he must have been in order to attack the sale. Hence no evidence of fraud was admissible. But the question arises whether the error of admitting it was cured by the subsequent direction of the court to the jury not to consider it. This question was considered by this court in the case of *The State Bank vs.*Dutton, decided at the last term [11 Wis., 371]. As will be seen by a reference to that case, the most favorable rule to the party in whose behalf such improper evidence has once been received and then excluded, which has been adopted by the courts, is that the admission furnishes no ground for a new trial, unless it appears that the evidence improperly influenced the verdict. Here the plaintiff testified positively to his ownership of the property. In opposition to him there was no evidence, save that of the fraud and some circumstances which it is claimed went to impeach his character for veracity. On the part of the defendant it is insisted, that it was upon the latter evidence that the jury found the verdict. It is said that they did not believe him; that his testimony was of so little weight *336that they could not find from it that he was the owner of property. It is unnecessary for us to say what disposi-tion we sfiould make of the case were we satisfied from the record that such was the opinion and belief of the jury. But of that we cannot be satisfied, where the improper evidence was quite as well calculated to support the conclusion at which they arrived, as that which was proper, and where, as here, the impeaching evidence was not of the most positive and convincing character. We cannot believe, under the circumstances of this case, that the jury, after the instruction to disregard it, remained entirely uninfluenced by the evidence admitted, and for that reason the judgment must be reversed, and a new trial awarded.

We see no error in the admission of the contract between Henry W. Remington and Ealkner. The most that is objected to it is, that it was irrelevant. The plaintiff was upon the stand as a wifness, and as such, liable to be discredited like any other. He testified to a contract with Ealkner made about the time and almost identical with that produced with Henry W.; and there being no pretense that Ealkner made two contracts, one with each, it was a fact which we think the jury might properly consider with a view to determining the degree of credit to be given to the plaintiff’s statements.

Judgment reversed, and a new trial awarded.