Bent v. Hoxie, 90 Wis. 625

Bent v. Hoxie

90 Wis. 625 | Wis. | 1895

Wins low, J.

The contract in question was a contract for the sale of an interest in lands, with a reservation of title as security for the purchase money. The subsequent cutting of the timber did not change the character of the in*630strument. The necessary result is that it was not a conditional sale of personal property nor a chattel mortgage, and did not have to be filed in the office of the town clerk as required by secs. 2314, 2317, R. S. These questions were all, in effect, settled by the case of Lillie v. Dunbar, 62 Wis. 198, where the contrary intimations in the cases of Cadle v. McLean, 48 Wis. 637, and Bunn v. Valley Lumber Co. 51 Wis. 376, are disavowed.

It follows logically that the plaintiff retained the title to the lumber cut from her logs or so much thereof as remained unsold in the possession of Hoxie & Mellor until, the whole purchase price was paid. There was due and unpaid on the contract, at the time of the commencement of the action, $10,336. Hoxie & Mellon had in their possession at that time ten million feet of lumber, of which 48,000 feet was above the grade of common lumber and the balance was common or below. This ten million feet was a mixture of lumber made from the Bent logs and the Bryant logs. To the mass of common lumber the Bent logs had contributed 1,690,000 feet. Out' of this mass the officer seized 1,215,236 feet. To the lumber of grades better than shop common the Bent logs had contributed 910,000 feet, and the officer seized of this lumber only 48,000 feet. o

It is argued that she could not replevin out of the common mass, and that she must find and identify the lumber made from her own logs. The case of Young v. Miles, 20 Wis. 615, seems to be a complete answer to this contention. The common mass was made up of lumber of the same quality and value drawn from two different lots of logs. The plaintiff’s logs contributed to make up this common mass, and she replevins from it a quantity considerably less than her contribution. This she can certainly do. Mowry v. White, 21 Wis. 417. There can be no just complaint because she did not take all the lumber to which she was entitled.

*631It is said that the evidence shows that the plaintiff received the notes of Hoxie & Mellor in payment of the balance due on the contract. It is sufficient to say in respect to this contention that the circuit court found that there was due and unpaid upon the contract, at the time this ac'tion was commenced, $10,336. This finding is not excepted to and is a verity.

By the Court.— Judgment affirmed.