#### Root vs. Bonnema.

*Demand.*

1. where defendant had drawn from his boom, and manufactured into lumber, logs belonging to other parties, who afterwards transferred their rights therein to plaintiff, the latter could not maintain an action for tbe lumber without showing a *demand*therefor upon defendant, made after the title vested in him.

2. Where defendant has willfully or indiscriminately intermixed plaintiff’s goods with his own, so that they cannot be distinguished, and the goods intermixed are of different qualities or values, plaintiff is entitled *tO'the whole.*

APPEAL from tbe Circuit Court f<^r *La Orosse*County. .

Action for tbe unlawful taking and detention of 60,000 feet of lumber belonging to plaintiff. Tbe complaint avers demand and refusal of tbe lumber; and that its value was $900; and demands judgment for that sum, with interest, and also “ a further judgment awarding bim tbe possession of said property, and in case it is retained by defendant pending tbe action, sucb further damages for such wrongful detention as shall be just, with costs.” Answer, a general denial. Tbe sheriff took possession of tbe property.

Tbe plaintiff’s evidence. tended to show that in tbe summer and fall of 1863, a large quantity of logs were in defendant’s boom at New Amsterdam, La Crosse county, more than three-fourths of which belonged to and bore tbe marks of other persons than defendant, and bad been fraudulently drawn into said boom by him from tbe main channel of tbe river, and were subsequently by bim manufactured into boards and piled indiscriminately with boards made of bis own logs, so that they could not be identified; and that before tbe commencement of tbe suit, several of tbe owners of said logs, by a bill of sale, conveyed their *540interest in said logs and lumber to tbe plaintiff. Tbe court instructed tbe jury that if these facts were proven, plaintiff was entitled to recover for *the whole*of tbe lumber so manufactured, wbetber made from plaintiff’s or defendant’s logs.

Tbe evidence for defendant, however, tended to show that tbe logs not belonging to him were brought into bis boom, not by bis act, but by the force of tbe stream in a time of flood; that some of tbe owners represented by plaintiff bad notice of tbe fact at tbe time; that defendant notified others of said owners that be would commence running bis mill on tbe 29th of November, and did commence on that day; that neither tbe persons so notified nor tbe defendant did anything towards separating and running their logs out, until* several days after said 29th of November ; that then they'sent but one man, and that one without tbe requisite skill for tbe work, whereas it required two men; that it was impracticable for defendant to get bis logs to saw separately while tbe others remained in tbe boom; that be could not separate bis and let tbe others pass through without great labor, delay and expense; that defendant kept an exact account of tbe measure and marks of tbe logs, not bis own, which be made into lumber; and that with a large number of bis men, be aided plaintiff to separate and get out from tbe boom tbe logs claimed by him and not yet sawed into lumber, when plaintiff at length came to tbe mill for that purpose. Tbe court instructed tbe jury that if they found these facts proven, “ tbe principle of title by confusion- of goods does not apply to tbe case.” And it added: “ In case you find, under these instructions, that tbe plaintiff has not title to *the whole*of tbe lumber replev-ied, under tbe principle of title by confusion of goods, but that tbe defendant is tbe owner of any’considerable part of it, you will find for tbe defendant.” At plaintiff’s request, tbe court further instructed tbe jury, 1. That if *541defendant manufactured a portion of said lumber from logs owned by plaintiff, without his consent, and willfully mixed it with lumber made from his own logs, so that it was impossible to separate them, then plaintiff was entitled to recover the value of *the whole*of said lumber. 2. That no demand was necessary in this case before the commencement of the action. 3. That if the logs from which the lumber in question was made, were in defendant’s boom without right, defendant had no right to manufacture them into lumber, or convert them to their own use without the consent of the owner. 4. That the title to the lumber made from logs belonging to the persons under whom plaintiff claimed, remained in them until transferred to plaintiff, when it vested in him, and he “ could maintain this action ” for such lumber. Plaintiff also asked the following instruction, which was not given: “ That the measure of damages in this case is, the highest market value of the lumber in question, at any time from the commencement of the action to the time of trial, with legal interest.” The following instructions asked for defendant were refused: 1. That if there had been a wrongful conversion of the property by defendant before its transfer to plaintiff, the latter could not maintain an action for such conversion; but the action must be by the persons who were owners at the time of the conversion. 2. That a demand was necessary to maintain the action. 3. That if the logs from which a part of the lumber in question was made, came into defendant’s hands without any fault on his part, and if, in order to saw his own logs, it became necessary to saw those of the other owners, plaintiff, to entitle himself to the possession of the lumber, should have tendered to defendant a reasonable ■compensation for the labor of making the logs into lumber. 4. That plaintiff was not entitled to a verdict for “the whole of the property in question,” unless defendant “ inter*542mixed the property with Ms own with intent to defraud the plaintiff.”

Verdict for plaintiff,, assessing the value of the property at $500. Motion for a new trial, on the grounds that the verdict was against the law and the evidence and against the charge of the court; that the verdict found matters not at issue; and that the court had erred in giving and refusing instructions. Motion denied; and defendant appealed from a judgment on the verdict.

*Stogdill £ Daniels,*for appellant,

argued, among other things, that plaintiff was bound to show a demand and refusal of the lumber, after the title vested in him, or that defendant exercised some control over it to the exclusion of the plaintiff. Cow. Treat., § 626; 4 Hill, 14; 2 Corns., 293. 2. This case lacks three essential conditions to the proper application of the principle of title by the confusion of goods. The lumber was not of different qualities or kinds, nor of different value, nor was there any fraudulent intent in the intermixture. 19 Wis., 126; 11 Met., 493; 2 Kent’s Comm. (3d ed.), 364; 21 Pick., 298; 30 Me., 237, 295; 2 Johns. Ch., 108. Plaintiff could replevy the amount of lumber he had in the mass, if it was unlawfully detained by defendant. 20 Wis., 615.

*Cameron § Lossy,*for respondent,

as to title by confusion of property, cited *Jenkins v. Steanka,*19 Wis., .128; *Wingate v. Smith,*20 Me., 288; *Ryder v. Hathaway,*21 Pick., 306;' *Willard v. Rice,*11 Met., 493; 2 Kent (3d ed.), 364; *Loomis v. Creen,*7 G-reenl., 393; *Bryant v. Ware,*30 Me., 295, and cases there cited; *Lupton v. White,*15 Ves., 439, 442.

Cole, J.

The court held that it was not necessary, in •order to entitle^the plaintiff to recover, that he must show ' a demand for the property before commencement of the suit. In this we think the court erred. The plaintiff derived title *543to a considerable portion of tbe lumber through the bill of sale appearing in the case. That hill of sale conveys to him “ all lumber of every description, wherever the same may be, manufactured at the saw mill occupied by *Oepke Bonnema,”*etc., from logs belonging to either of the vendors. “ Also all the logs belonging to either or any of them in Black river or near its banks, within three miles of the mill.” Row the object of the suit in part was, to recover this lumber in possessession of the defendant. Manifestly there should be a demand for this property by the plaintiff, before suit brought. After he became the owner of the property, there was no refusal on the part of the defendant to restore the lumber to him, nor anything tantamount to a refusal. Possibly the defendant would have restored the lumber to him, had he given him an opportunity to do so. At all events,, it should appear that the defendant exercised some control over the property incompatible with the plaintiff’s rights, after the latter became the owner. Hence the necessity that a demand should have been made before the commencement of the action. The circuit court specifically instructed the jury that no such demand was necessary. See *Hall v. Robinson,*2 Comstock, 293; *Robinson v. Weeks,*6 How. Pr. R., 161; *Norris v. The Milwaukee Dock Co.,*21 Wis., 130.

The court, both in the general charge and in the special instructions, laid down the law very clearly and correctly in regard to the willful confusion of goods. It was in entire harmony with the doctrine of this court as announced in *Jenkins v. Steanka,*19 Wis., 126. Mr. Justice DowneR, in that case, says: “ The law, as we think, is, that if Wright willfully or indiscriminately intermixed the lumber sawed from the logs of the plaintiffs with his own lumber, so that it could not be distinguished, and the lumber so mixed was of different qualities or value, then the plaintiff would be *544entitled to liold the whole.” And this is substantially the doctrine laid down in *Wright v. Smith,*20 Maine, 287, as well as by the authorities cited in the opinion. But, for the error first above noticed, we think there must be a new trial.

*By the Court.*— The judgment of the circuit court is reversed, and a new trial awarded.