Dishneau v. Newton

96 Wis. 531 | Wis. | 1897

Winslow, J.

Probably the proof was sufficient to sustain that part of the verdict which finds that the plaintiff owned the horses in question at the time of the alleged conversion, but we are quite well satisfied that the finding to the effect that the horses were not redelivered to Mr. Dishneau is against the weight of the evidence, and was based upon an erroneous instruction.

The court charged the jury upon this question as follows: “The burden here is upon the defendant to show that the property was redelivered to Mr. Dishneau. However, the statute makes the return of the officer presumptive evidence of the facts therein stated. Now, the return of the officer that had this property in charge, and which has been offered in evidence here, states that the property was returned to Mr. Dishneau. That, gentlemen, however, is merely a presumption, — a legal presumption,— that gives way as a matter of course, and yields to any positive credible evidence that it was not redelivered. Here, if you find the horses were delivered by the officer to Thayer & McCarthy, although in pursuance of an arrangement with Mr. Dishneau, by which Thayer & McCarthy wero to become the owners'of the horses, you will answer c No ’ to that question; that is, I say, the delivery of the horses to Thayer & McCarthy was not a delivery to Dishneau, although it was in pursuance of an arrangement,— although made in pursuance of an arrangement between Dishneau and Thayer & McCarthy.”

The evidence was conclusive that Dishneau,. for a long time prior to the attachment suit, had complete and exclusive control of the horses. He took them where he pleased, employed them as he pleased, and at all times had done as he saw fit with them, with his wife’s full consent. He was certainly clothed with apparent ownership. While it may be that he had not authority to sell them, certain it is that he had power to place them in charge of any person he chose. Thus, while the contract of sale to McCarthy & Thayer may not have been binding upon her as a sale of the horses, still, if McCarthy & Thayer obtained possession of the horses under it, their possession would certainly be rightful, because obtained from the agent of the owner, who had the right to control their possession. They might not be able to enforce their contract of purchase on account of lack of authority in Dishneau to sell, but their possession would be rightful at least until the owner had repudiated the contract of sale and demanded return of the property. The contract expressly provided that McCarthy & Thayer should take possession of the horses upon their being released from the attachment levy. "Whether Dishneau actively assisted in or was present at the time of the giving of the bond to release the horses from the attachment levy, we regard as of no moment. The bond was prepared by his attorneys, unquestionably by virtue of their employment, and Dishneau cannot now repudiate their acts. The contract and bond together justified the sheriff in allowing the property to be delivered to McCarthy & Thayer, and such delivery was really, in legal effect, a delivery to Dishneau. The charge to the effect that the delivery of the horses to McCarthy & Thayer was not a delivery to Dishneau, although made in pursuance of the arrangement between Dishneau and McCarthy & Thayer, was therefore erroneous. The defendants were entitled to an instruction, upon the uncontradicted evidence, that the horses had been, in legal effect, redelivered to Dishneau.

By the Court.— Judgment reversed, and action remanded for a new trial.