The following opinion was filed at the June term, 1873.
Oole, J.The first exceptions taken by the counsel for the defendants relate to the rulings of the court on admitting in evidence the scale-bill made by the surveyor general of the first lumber district of Minnesota, and upon the motion for a non-suit. These exceptions can be conveniently considered together.
The parties differed in regard to the quantity of logs which had been delivered by the plaintiff. And the scale-bill was introduced in evidence to prove the delivery of the logs mentioned in it. It appeared from the testimony of Mr. Baker, that this scale-bill had been submitted by him to the defendant Schulenberg, who had in substance admitted that the defendants had received the amount of logs mentioned in that scale-bill, and that it was substantially correct. Now it is said that this admission was, under the circumstances, the weakest bind of evidence upon the question as to the quantity of logs delivered by the plaintiff; and yet undeniably it was competent testimony to go to the jury upon that point. Whether much or little weight was to be given this admission with reference to the fact to be proved, was obviously a matter for the jury alone to determine. But it is impossible to say that, in connection with the other testimony, it did not tend to prove the delivery of the amount of logs mentioned in it, by the plaintiff. And this being so, it is further very manifest that there was no error in the refusal of the court to grant the motion for a non-suit on the ground that there was no evidence of the delivery of the amount of logs as claimed in the complaint. There was certainly testimony to go to the jury upon that question, and consequently the motion for a nonsuit was properly denied.
The other exceptions resolve themselves into the question as *47to wha-t effect should be given to tbe receipt offered in evidence, dated February 26, 1868. Tbe defendants insisted that this receipt was satisfactory and conclusive evidence of a final settlement between the parties of all matters relating to tbe amount of logs delivered, and showed a payment of the balance found due at that time. The court, however, held that no such conclusive force or effect should be given to the receipt, but that it was open to explanation, and permitted the plaintiff to testify, under objection, that when he signed the receipt it was not his understanding and intention that it should be a-final settlement of all tbe log transactions between him and the defendants, including the logs claimed by Cover, which was tbe principal matter in controversy m this action.
It seems to us the court was clearly right in the view it took of- the receipt, and the effect which should be given to it in. evidence. The receipt was for $102.76, “in full for logs up to date,” and it was undoubtedly strong evidence that the plaintiff had received payment for all the logs he had delivered prior to its date. But it was not conclusive evidence of that fact, and might be explained. It was competent for tbe plaintiff to show, notwithstanding the receipt purported to be “ in full for logs up to date,” that the logs in controversy were not included in that settlement. The fact which it recited was open to explanation, and even contradiction, by oral testimony. The plaintiff testified that when he signed the receipt, “ he did not notice that it was anything more than a receipt for so much money.” He did not intend that it should cut him off from insisting upon "being paid for the Cover logs; and we do not know of any principle, of law or morals which precludes him from showing that the receipt did not in fact and was not intended to cover that claim. These remarks are all we deem it necessary to make in respect to the refusal of the court to give the first two instructions asked on the part of the defendants, as to the effect of the receipt in evidence, as well as in respect *48to the exception taken to the charge of tbe court upon that subject..
The other two instructions asked on the part of the defendants were objectionable for ignoring the question whether the plaintiff was the owner of the logs delivered to them by Cover. It was of no consequence whether or not Cover made the arrangement he testified to with Nelson, and in pursuance thereof picked up the logs in the lake and delivered them to the defendants, if the' logs were the property of the plaintiff. How could such a transaction affect the plaintiff’s rights, or relieve the defendants from liability to pay him for his logs ?
If the plaintiff was entitled, under the circumstances, to recover for these logs, then we do not understand that the amount of damages in the judgment is excessive. The plaintiff remitted a portion of the damages, pending a motion for a new trial, as he had a right to do.
This disposes of all the material questions in the case.
By the Court. — The judgment of the court below is affirmed.
On a motion for a rehearing, counsel for the appellants argued that the action, being brought for goods sold and delivered by plaintiff to defendants, could not be maintained for logs sold and delivered by Cover. If the logs purchased by defendants of Cover belonged to plaintiff, his remedy, if defendants had sold them and received the money, was to sue for money had and received. If defendants still had the logs, and had done any act amounting to a conversion, plaintiff should sue in tort for their value. A party should be confined to the cause of action stated in his complaint. Eilert v. City of Oshkosh, 14 Wis., 586; Hempstead v. N. Y. C. R. Co., 28 Barb., 485. Plaintiff having failed to show that defendants had sold these logs, and therefore received money to his use, and it appearing that defendants had purchased the logs of Cover as his own, Smith could not recover for them, either upon express or implied contract. His *49only other ground for relief was an action in tort, which must be limited to trover, since trespass would not lie, defendants having purchased innocently of Cover. But plaintiff had failed to show a conversion ; hence trover would not lie. 2 Hilliard on Torts, p. 108, and cases cited.