100 Wis. 387 | Wis. | 1898
This was an action for tlie recovery of a lot of merchandise stored by the defendant, Karger, at No. 559 East Water street, Milwaukee, and in charge of one Bing, a relative of Karger, to sell for him on commission. The plaintiff, Clara Abraham, was at this time conducting a business under the name of the “Milwaukee Knitting Works.” This business was managed for her by her father, Louis Abraham, as her agent, who a few days prior to August 26, 1896, began negotiations with Bing for the purchase of the merchandise belonging to the defendant, Karger. These negotiations were in part conducted, according to the evidence of the plaintiff, Abraham, in the presence of, and with the sanction of, the defendant, Karger. There was a dispute between the witnesses for the plaintiff, on the one side, and the defendant and his witnesses, on the other, as to the terms of sale finally agreed on between the plaintiff and defendant. On the part of the plaintiff, Louis Abraham testified that the agreement as finally made was that the plaintiff was to pay the defendant, Karger, for this stock $2,000 in cash, and to deliver to him the note of one W. A. Meyer for $500; and this was corroborated by the evidence of James L. Gates, a witness on the part of the plaintiff, who testified that the defendant, Karger, stated to him that such was the case. The testimony of Karger and his witnesses was that the plaintiff was to pay to the defendant $2,500 in cash, and that Karger did not agree or consent in any way to accept the note of Meyer in payment of part of the consideration; and it appeared that this dispute as to the terms of the sale was the only matter upon which there was any conflict of testimony. On all other points the witnesses substantially agreed.
At the time when the bargain was made, Louis Abraham paid Bing $25 to bind the bargain. The nest day the plaintiff, Abraham, paid to Bing $1,500, and at the time Bing gave to Abraham, an invoice or statement, drawn up in Bing’s
The court, in its charge to the jury, in effect told them that the question at issue was Avhether the sale was to be for cash and notes, as testified to by the plaintiff’s witnesses, or for cash solely, as testified to by the defendant and his witnesses ; that if they found the claim of the plaintiff to be correct, then the verdict should be in factor of the plaintiff; if they found the facts as to the sale or agreement to be as claimed by the defendant, then they should find for the defendant. The jury found for the plaintiff, and that she was the owner of, and entitled to the possession of, the goods seized under the writ; that the same were unlawfully detained from her by the defendant; that the value of the property was $3,500. The plaintiff had judgment against the defendant for the possession of the property, and for the recovery of the costs, together Avith the damages of six cents.
The defendant asked the court to instruct the jury to find
The evidence as to what actually did occur, or what was agreed on between the parties, is in some respects conflicting and contradictory. The case was rightly submitted to the jury to find upon the vital point in dispute and thus determine whether the property and right of possession passed to the plaintiff. The evidence was clearly sufficient to sustain the finding of the jury, and the court could not have properly directed a verdict for the defendant. “ Where the property in the goods has passed to the buyer and the contract is executed, ... he may maintain trover ” (21 Am. & Eng. Ency. of Law, 627); or replevin (Bradley v. Michael, 1 Ind. 551, 552; Rhea v. Riner, 21 Ill. 526).
The defendant presented a number of requests to charge, and has assigned various errors upon other rulings of the court, an examination of which does not disclose that any material error has intervened to the prejudice of the defendant. A discussion of the evidence contained in the printed case would serve no useful purpose.
For these reasons, the judgment of the superior court of Milwaukee county must be affirmed.
By the Court.— Judgment is ordered accordingly.