90 Wis. 631 | Wis. | 1895
The character of the logging contract and its validity have been determined in the companion case of Bent v. Hoxie, ante, p. 625. The plaintiff retained title to the lumber manufactured from her logs until the contract price was paid. The facts are very simple. At the time of the assignment there was in the yard 330,000 feet of1 lumber,, valued at $1,650, and the title to this lumber remained in the plaintiff until the balance due her on the contract, viz., $999.15, was paid. The assignee took this lumber and sold it. Upon well established principles the assignee must account to the plaintiff for the value of the plaintiff’s property so taken and sold, to the amount of the plaintiff’s interest, in it. The property was that of the plaintiff. She has traced it specifically into a mass property of the same quality in the hands of the assignee. She was entitled to replevy it. from the common mass. Bent v. Hoxie, supra. Hot having-done so she can still, after its conversion by the assignee,, claim the money which it brought. It is substantially a trust fund in the hands of the assignee, and it has been successfully traced. The principles frequently stated in the oases, decided by this court beginning with Nonotuck Silk Co. v. Flanders, 87 Wis. 237, apply and plainly demonstrate the plaintiff’s right of recovery.
The complaint was answered on the merits and the action
It is said that the plaintiff, haying brought a replevin action and obtained partial relief, cannot maintain this action, because the remedies are inconsistent. We perceive no inconsistency. Both actions are founded on the same basis, namely, the ownership of the lumber by the plaintiff. There is no inconsistency between any of the claims made in the replevin action and the claims made in this action. The defendant is in no way prejudiced by the failure of the plaintiff to obtain full relief in the replevin action and by her resort to this action for the balance. In a word, there is no inconsistency between the remedy sought in this action and the remedy in the replevin action. We are not informed why the officer did not seize all the lumber to which plaintiff was entitled in the replevin action, but it is certain that he did not and that there was still left in the hands of Hoxie & Mellor, and subsequently in the hands of the assignee, :$999.15 worth of lumber for which she obtained no judgment in the replevin action. In claiming that sum in this .action she takes exactly the same position that she would occupy in the replevin action, namely, that she owned the lumber under the contract until the contract price was paid.
By the Cowrt.— Judgment reversed, and action remanded •with direction to render judgment for the plaintiff in accordance with this opinion.