#### Appleton vs. Barrett and others.

*Instructions ; ear or when disregarded. Replevin; previous demand, what sufficient.*

1. Where the verdict and judgment are clearly right upon the evidence, errors in instructing the jury, or in other respects, which could not have changed the result, must he disregarded.

2. Where articles of personal property, belonging to plaintiffbut in defendant’s possession, were numerous and scattered in different places, and defendant peremptorily refused to surrender any part thereof, it was not necessary, in order to make a sufficient *demand*before suit, that plaintiff should endeavor to- compel defendant to go with him from place to place to have several articles pointed out, or should even compel him to read, or hear read, a list of them.

APPEAL from the Circuit Court for *Sheboygan*County.

This action was commenced in June, 1866, to recover between 600 and 700 distinct articles of personal property, consisting of furniture, tools and materials, such as are commonly used about railroads, depots and machine shops. The complaint alleged title in the plaintiffs, possession by the defendant, a demand for its return, and defendants’ refusal to give it up, and demanded judgment for the property or its value, and for damages for its detention. The answer of defendant *Barrett*denied all the material allegations of the complaint, and alleged that the property claimed belonged to the Sheboygan and Fond du Lac Railroad Company, and that he was receiver of said *222company; and Held the property *as-*such receiver. The other defendants were sureties in the- undertaking'given' by the defendant *Barrett]*to'-retain-the'property.

The ■ proof' showed - that the; plaintiff was a: contractor for ■ the construction of the Sheboygan & Mississippi Railroad,- and as such had operated a portion-- of the road: for his own benefit until the sale thereof in March, 1861, on foreclosure of a mortgage, and that after the formation of the Sheboygan and Eond du Lac Railroad Company by the purchasers at the foreclosure sale, he had operated it as superintendent, under a resolution of the directors authorizing him-to do so,- and.to receive the earnings and pay the disbursements for wages of employees and other running "expenses, necessary repairs of'the road and equipment and percentage to the state, and for his own services, and expressly-restricting-his' expenditures- to the- earnings of. the road'; that during the time he so operated the road, he purchased the articles of- personal, property claimed^ the greater part of them, with-his-own-money, and used them-in operating .the road while.he managed.it;- anddeft- them with one- Reed,- his assistant superintendent, who was appointed superintendent by the defendant. *Barrett,*after he took possession as receiver in 1865, and they continued to be. used in operating; the road; that such articles were distributed along the line of the road; that he made a personal demand, of the defendant *Barrett*in the passenger station at Sheboygan, saying to.him, “I-have come to- demand possession' of' my property- in.yourhandsj and here-is a; list,” tendering the list; and the defendant replied he “should, not deliver any of it,” with out-'taking or reading'the list; that the party making the foreclosure "sale informed purchasers--that; he offered all that belonged to. the company, and stated-there. Were some articles around there that.belonged to the plaintiff,-, *Appleton;*that the company purchased some tools, of the plaintiff ; that the defendant had made various -admissions of. plaintiffs title to property used by the' road, such ■ as- he claimed'; and that the earnings of the .road were not sufficient to pay the *223necessary running expenses. Tbe mortgage under wbicb tbe road was sold,covered all tbe property of tbe company, including“cars, macbinery, tools and implements, wood and property, connected witb tbe proper equipment, working, operating, and conducting tbe road,” all wbicb were declared to be “fixtures and appurtenances,” to be sold witb tbe road and not separated therefrom.

It is not necessary to notice tbe instructions given to tbe jury, further than to say that tbe first five, given at tbe .request of tbe plaintiff, relate to bis title, and tbe seventh to tbe title necessary to be shown by defendant to defeat plaintiff’s recovery; and that tbe instructions asked by tbe defendant and refused by tbe court, related to tbe sufficiency of tbe plaintiff’s demand.

Tbe jury found a verdict for tbe plaintiff, and on bis motion judgment was ordered to be entered against tbe sureties as well as against tbe defendant himself; and tbe plaintiff having given notice in open court of bis election, to take a judgment absolutely for tbe value of tbe property, a judgment was entered, accordingly; but it was afterward set aside on plaintiff’s motion, and a new judgment in tbe alternative form entered.

Defendants appealed.

*Bentley &*Seaman, for appellants,

claimed that it was error to admit proof of tbe aggregate value of all the articles claimed; that tbe plaintiff, having mixed his property witb that of tbe company, could not reclaim it until be bad clearly pointed it out to tbe innocent possessor; that tbe demand was insufficient, citing *Oolegrave v. Bias Santos,*2 B. & C., 76; *Breese vs. Bange,*2 E. D. Smith, 474; that tbe original judgment was bad, and the court bad no power to set it aside and direct tbe entry of another in its place, citing *Edwards v.*Janesville, 14 Wis., 26; *Boyd v. Blaisdell,*15 id., 73; *Wyman v. Buckstaff,*24 id;, 477.

*Gerritt T.*Thorn, for respondent,

argued that tbe plea of general denial, and that of property in defendant were repugnant to each other, citing *Bourh v. Biggs,*38 III, 320; *Gray v.*
      *224
      *Parlcer,*38 Mo., 160; *Hartwell v.*Page, 14 Wis., 49; *Blanlcmanv. Vallejo,*15Cal., 644; *Buseniousv. Coffee,*14icL,91; *Kuhlandv.Sedg-*wide, 17 id., 123 ; that it was not necessary for plaintiff to aver a demand and refusal, citing *Oleson v.*Merrill, 20 Wis., 462; *Seaver v.*Dingley, 4 Grreenl., (Me.), 306; *Galvin v. Bacon,*2 Fairfield, (Me.), 28; *Lewis v.*Masters, 8 Blackf. (Ind.), 244; *Beébe v*• *BeBaun,*3 Eng. (Ark.), 564; *Morris on*Replevin, 77, 78-123-133 ; *McNeil v. Arnold,*17 Ark., 173; *Grayv.*Nations, 1 id., 557 *]Bunhamv. Converse,*28 Wis., 306; tbattbe property need not be present or pointed out, citing *Breidert v. Vincent,*1 E. D. Smith, 542 ; and that the court below had the right to correct its judgment, citing *Sexton v. Pidceit,*24 Wis., 346.

Dixon, C. J.

A careful perusal of the somewhat voluminous bill of exceptions in this case, which is certified to contain all the testimony given on the trial of the cause, confirms in our minds the truth of the remark of the judge to the jury, that, *“*after all, the whole evidence tends to but two or three points, and the case is really not so intricate as might at first thought be supposed.” It is really, on its merits, and without regard to purely technical points and objections, a case of no doubt or intricacy whatever. The plaintiff’s title and right of possession of the property in controversy was most clearly established, and with as much precision and particularity of evidence as the nature of the property, the number and diversity of the articles, and its situation, would admit of; and against the case so made the defendants offered the least possible proof, a mere spark as it were, consisting of an alleged verbal admission of the plaintiff, which was contradicted or fully explained on his part. With a verdict and judgment against them, so sustained on the merits and resting on grounds of substantial justice and right, the defendants come here seeking a reversal upon .points of the ■merest technicality, we might almost say, of cavil. As, under the evidence which was correctly received, the jury could not have found differently, the case is a proper one for the appliea*225tion of the rule that, where the verdict and judgment are clearly right upon the evidence, error of instruction or error in any other respect, which could not have affected the verdict or changed the result, will -be disregarded on appeal. The court will not, under such circumstances, pause to consider such errors, but they will be looked upon as immaterial. *Andrea v. Thatcher,*24 Wis., 471, 477; *Cuthbert v. City of Appleton,*id., 383; *Roach v. The Town of Menomonie,*id., 527; *Mather v. Hutchinson,*25 id., 27. And the same is the rule.of the statute, as this court has over and over again decided. See *Bowman v. Van Kuren, ante,*p. 209, and cases there cited.

The objection to the demand made for the property was wholly untenable. The plaintiff was not required to commit assault and battery, or subject himself to an action for false imprisonment, by taking the defendant, in whose possession the property was, forcibly over the road to point out to and demand of him the delivery of each article by itself, in order to maintain his action. He could not even compel the defendant to read the list, or hear it read. It was enough that the defendant peremptorily refused to surrender any of the property to excuse any further effort at specification, or particular demand of the different articles, on the part of the plaintiff.

The charge of the court, contained in the first five instructions given at the request of the plaintiff, was clearly correct, and enough upon the subject. There may have been some inconsistency between the seventh instruction given on plaintiff’s request, and the first three points charged at the request of the defendant ; but this is immaterial, on the ground above stated, as indeed are all the other objections and exceptions urged.

*By the Court*— The judgment is affirmed.