76 Wis. 520 | Wis. | 1890
The following opinion was filed January 28, 1890:
Testimony was introduced by the plaintiffs, which they claim proves that they took actual possession of the logs in controversy before they were seized by the sheriff by virtue of the attachment as the property of Rood Maxwell. The substance of such testimony is given in
1. The question which first presents itself is, Did the contract of October II, 1887, as between the parties thereto, convey to the plaintiffs and vest in them the title to the logs and the right to the possession thereof? Under the terms of the contract, an affirmative answer to this question is inevitable. Its language is: “ The title to the said logs and the possession to vest in the said Cook & Co. on the ensealing of these presents.” It was claimed in argument that the effect of this broad general language is limited or qualified by the provision therein regarding culls, to wit: “ Culls to belong to seller, or to be taken by the purchaser at three dollars per thousand feet for mill culls in the pile.” We do not think the provision has the effect claimed for it. The plaintiffs purchased the whole of the logs, but reserved the option to require Rood & Maxwell to keep the mill culls in the pile; that is, after the logs were sawed and the culls were piled. This falls far short of a reservation by Rood & Maxwell of the lumber cut from the logs which should grade as “ culls,” or so much of each log as proved to be culls when sawed. It appears that the plaintiffs elected to keep and pay for such cull lumber, but when the election was made we are not advised. As between the parties to the contract, we conclude the title to the logs vested in the plaintiffs on the delivery of the contract. It is too well settled to require citation of authorities to the proposition, that the fact the lumber had to be cut, graded, and measured before the aggregate contract price therefor could be determined is no impediment to a transfer of the title thereto to the plaintiffs when the contract was executed.
Sec. 1739 reads as follows: “All mortgages, liens, bills of sale, or other written instruments, in any way affecting the ownership of any marked logs in any lumber district, which shall specify the marks placed upon said logs and when they were cut, shall be recorded in the office of the lumber inspector in which said marks are recorded; and no such conveyance, lien, mortgage, or transfer shall be valid, except as to the parties thereto, until the same is so recorded, or until the same shall be filed with some deputy lumber inspector, wffio shall immediately forward such instrument to the inspector of the proper district. Such filing and recording of all such instruments and papers shall have the same effect as notice as the recording of deeds and mortgages in the office of the register of deeds.”
The logs in controversy were marked logs, but the contract of October 17,1887, does not specify the marks placed upon such logs, nor when they were cut. Hence it was not entitled to record under the statute, and was not recorded. The learned counsel for the defendant maintains, with much ingenuity of argument, that, as against all the world except the vendor, a sale of marked logs, with or without change of possession, or with or without notice thereof, is
The next question is, Have the plaintiffs made the proofs required by sec. 2310
The propositions above determined dispose of all the material errors assigned, either by overruling them or rendering them immaterial. It is not necessary to state them in detail. Ve conclude that the undisputed evidence proves conclusively that the plaintiffs are entitled to the judgment they have recovered, and hence that the court properly directed the jury to return a verdict for them.
By the Court.— The judgment of the circuit court is affirmed.
A motion for a rehearing was denied April 29, 1890.