75 Wis. 170 | Wis. | 1882
By two certain written agreements, one dated September 15, and the other November 2, 1885, the plaintiff agreed to manufacture a large quantity of engravings and lithographs for theatrical purposes, for the defendant and for his special use, to be taken and paid for during the
The jury found, also, that it was agreed and understood that the title of the property should pass to the defendant the 15th day of December, 1885, the time the work should be finished, and that manufacturing the goods and setting them apart subject to the defendant’s order, it was mutually understood, should be delivery to the defendant. These two findings dispose of questions of law which depend upon the meaning, construction, and legal effect of the written contracts, and they ought not to have been submitted to the jury. But the court sufficiently ruled the same way,
The learned counsel on both sides, and the court below, treated this transaction as a sale of personal property. It was not a sale. • When the contracts were entered into there was nothing in solido to be the subject of<a sale. The mere paper, as the basis of this valuable work of mechanical art, was not only of insignificant value, but was not the subject of sale. The defendant did not wish to buy blank paper, and the plaintiff had none to sell. , The plaintiff was to manufacture these engravings and lithographs for the especial, peculiar, and exclusive use of the defendant in his business as a theatrical manager. They were advertisements adapted to the names and characters of his theatrical performances. It was the plaintiff's work of skill that gave the property produced by it any value. It was work and labor performed according to the order and direction of the defendant, and according to the terms of the contracts. When the required works were produced and ready to be taken awa}^ by the defendant and paid for, it was then not a sale. The plaintiff did not own them, and did not wish' to own them, for they were of no use or value whatever to him, and were only of use and value to the defendant. When the job was completed according to the contracts, then the defendant was under legal obligation to take them away and pay the amount agreed upon, during the theatrical season which ended May 5, 1886. If he does not do this, what are the legal rights of the parties ? Is there any question about delivery or acceptance? Clearly not. It makes no difference with the plaintiff whether the defendant takes them away or not, for he is entitled to be paid for the job, or for his work according to the contracts. The contracts are that the works shall be paid for “as they are delivered; ” that is, as they are delivered during the theat
These contracts nmy be likened to a job that a printer does for another, and according to his directions, when the work consists of hand-bills or advertisements set up in attractive form, and adapted exclusively to the business of such other person, and useful to no one else. The job is completed according to contract, and the other party has failed to take them away and pay for them. May not the printer sue? Or an artist paints the likeness of another according to contract. It is not called for, but left a long time on the artist’s hands. The work was well done and acceptable to the person who ordered it. It is of no use to . the artist, or of any value to any one except to him whose likeness or picture it represents. In all these cases it is too clear for argument that the transaction is not governed by
The defendant, by his own default and neglect, left his engravings and lithographs "with the plaintiff, and under his care and custody, as a naked bailee, for some time after the time he agreed to take them away and pay for them, and they were burned. They were piled together and set apart for the defendant in a safe place, and he had accepted the work as being according to the contract. There can be no doubt, as we have said already, that the plaintiff had an action for the money agreed to be paid, after the time for payment had expired. In that view, the fact that the ■work was afterwards burned up is immaterial, unless caused by the plaintiff’s negligence.
But, in analogy to a sale of the property, it was left in the plaintiff’s care by the fault of the defendant, and if there was any loss by fire he must suffer it. Where several articles of the same kind were purchased, and only one taken away, and the others left with the vendor, to be oalled for at any time the vendee chose, the title of the property passed to the vendee at the time of the sale. Bullis v. Borden, 21 Wis. 139. So the title of this property passed to the defendant, December 15, 1885, when it had all been manufactured according to the contracts and part of it taken away, and after that remained with the plaint
There is another principle of liability in such a case, and that is that the defendant was liable for not accepting and taking away the goods manufactured after the time he was required by the contracts to do so, as in Ganson v. Madigan, 15 Wis. 144. The defendant had ordered a reaping-machine of the manufacturer of a certain kind. The machine was what the defendant had ordered, and the plaintiff had set it apart for the defendant, so as to be capable of identification. It was held that the plaintiff could have sold the machine to satisfy his lien upon it, and recover the balance of the purchase price, or could have held it subject to the defendant’s order, and recover the whole price. In Mixer v. Howarth, 21 Pick. 207, where it is an agreement with a workman to put materials together and construct an article for the employer at an agreed price, it was held that it was not a sale until actual delivery and acceptance, and the remedy was for not accepting it on the agreement. To the same effect are Spencer v. Cone, 1 Met. 283; Goddard v. Binney, 115 Mass. 450. In Atkinson v. Bell, 8 Barn. & C. 277, the defendant ordered certain frames, with alterations made on them, of the patentees, and Avhen ready for delivery refused to accept them. It was held that the plaintiff might recover for his not accepting them. To the same effect is Lee v. Griffin, 1 Best & S. 272, where a person or-dereda set of-artificial or false teeth made to fit his mouth.
But finally, on this general question, this court recently decided that a transaction or contract not by any means so clearly not so, was not a sale, but for work and labor. In Meincke v. Falk, 55 Wis. 427, the article to be manufactured was a family carriage, specially ordered, of a particular model. The plaintiff’s skill, labor, and workmanship were the special inducement in giving the order, and without such order the plaintiff would not have manufactured it, and it was not kept as a part of his general stock. The carriage was completed according to the contract or order, and the defendant refused to accept it. The action was for the value of the carriage, and for storing it for the defendant, on the ground of non-acceptance. In that case Mr. Justice Cassoday reviewed-very fully the authorities on the question, which were conceded to be somewhat in conflict. It was held that it was not a sale of the carriage, but a contract for work and labor, and that, therefore, the verbal contract was not within the $50 statute of frauds.
The complaint in this action was not for the price of the goods, as sold to the defendant, but the ground of the action is that “the defendant has never ordered the same shipped, nor taken or paid for the same, or any part thereof; ” in effect, that the defendant had refused to accept the same. This case, therefore, falls directly within the authorities above cited. Although the instructions of the court and the special findings of the jury were more particularly applicable to this transaction as a sale of goods, yet many of the findings are appropriate to work and labor' performed by the plaintiff for the defendant in producing the goods; such as,
In the above view taken of the- case, the fact that the plaintiff insured the goods as nominal owner, and collected the insurance, is not material as bearing on the question of their ownership, for the plaintiff had a right to have them insured to protect its lien, and doing so as nominal owner would be no evidence that the defendant ought not to have accepted them and paid for them before the fire, and that the loss, if any, was not his loss. A vendee before he accepts the goods may insure them, and it is no evidence that he has waived his right to reject them if they are not according to the contract. Bacon v. Eccles, 43 Wis, 227. But the defendant ought not to complain of the insurance. It
This opinion is much longer than it would have been if the case had been tried upon the correct theory. It would not answer to-, allow it to go into the reports as a sale, in contradiction of Meincke v. Falk, 55 Wis. 427. The result was warranted by the evidence just the same, however, and the judgment is correct, and the errors assigned become immaterial.
By the Court.— The judgment of the circuit court is affirmed.