54 Wis. 604 | Wis. | 1882
It is not claimed that the plaintiff can maintain this suit unless she was the owner of the lumber which it is alleged was converted by the defendants.' That is to say, it was essential for her to show that the title to the property had passed to her, otherwise she was not entitled to recover its value. She makes title through a sale from the Mihills Manufacturing Company. The question is, Did the title and ownership of the lumber ever become so vested in that company that it could pass the property by sale to the plaintiff ? This, of course, is the vital question in the case,, and its solution requires an examination of the contract. By the contract the defendants sold to the Mihills Manufacturing Company sixty-five per cent, of the entire cut (after taking out culls and shingles) of lumber, which should be manufactured for them from logs that season at the mill designated. The contract provided that the lumber should “be cut into shop cuttings,” as directed by the .Mihills Company, and should be piled for the purpose of being loaded on the cars as the com
“ In consideration whereof the parties of the second part promise and agree to pay sixteen dollars per thousand feet for said sixty-five per cent, of entire cut of lumber, as aforesaid, in maimer as follows: Said lumber to be estimated on or near the 15th of each month, and twelve dollars per thousand feet in yard of the sixty-five per cent, of cut aforesaid to be paid to the parties of the first part at the time of estimate, or within ten days after said estimate, and the balance, four dollars per thousand feet, to be paid when lumber is loaded on cars for shipping; title to said lumber to vest in the parties of the second part as soon as estimated; said lumber to be shipped as soon as dry enough to put 10,000 feet on a car; and none of said lumber to be shipped until estimated and paid for.”
The contention is as to the meaning of this clause, and what was necessary to be done under it in order to pass the title of the lumber. On the part of the defendants it is insisted that the clause meant and required a monthly estimate; in other words, an actual measurement or ascertainment by the parties of all the lumber in the yard which was cut under the contract, and a separation or designation of the sixty-five per cent., so as to identify the property the title to which would pass to the vendee. It seems to us that this is the true meaning and proper construction of the clause.
It is said by the learned counsel for the plaintiff, that the word “measure ” is not used in the contract, but the word “ estimate.” But we think the latter expression, in the connection in which it is used, means essentially the same thing as the former. The word “ estimate ” here involves the idea that there is to be a measurement of the lumber each month, of the entire cut,.and the setting apart of the proper quantity to the company as a condition to the passing of the title. We see no reason why the general rule applicable to the sale of
Now, without discussing the facts, it is sufficient to say that there is not the least scintilla of evidence tending to show that a monthly estimate or measurement of the entire cut in the yard was ever made by any one. And the learned counsel for the plaintiff frankly admit that at no time was there an estimate of the total quantity of sawed lumber then in the yard ever made, and sixty-five per cent, taken out and set aside for the company. In our view, it was absolutely essential that this should be done before the title to any portion of the lumber would pass. The contract is clear and specific that the monthly estimate is to be of the entire cut in the yard.
But while the plaintiff’s counsel do not claim that there is any evidence which tends to prove an estimate at any time of the entire cut in the yard, yet they do insist that there was testimony which would warrant ,the jury in finding that) the agents of the company went to the yard where the lumber was being manufactured, at the time specified in the contract, for the purpose of making Ithe estimate; that at each time several piles were estimated in the presence or with the knowledge of one of the defendants or of their agent; that these piles were ' marked with the initials of the company, with the quantity in each pile; and that these piles so marked were subsequently sold to the plaintiff. The fact is admitted that before such sale the company had made advances on the contract amounting to $5,467.87. It is not necessary to refer to anything subsequently done by the parties under the contract, per-tainly nothing ,was done by the plaintiff or by her assignor to compjete her title to the lumber in controversy, or which
It follows from these views that there is nothing in the rulings of the court on the trial or in the charge, of W'hich the plaintiff can complain, because she shows no title to the lumber in controversy. The learned circuit court held in effect that, in order to pass the title to any lumber under the contract, it was necessary not only that the monthly estimate of the entire cut in the yard should be made, and sixty-five per cent, of the quantity ascertained and designated, but that $12 per thousand should also be paid. We do not think this was a correct view of the contract; but the error of the court in that regard could not have prejudiced the- plaintiff, in view of the important fact that no estimate, as required by the contract, was ever made. The judgment was therefore right, notwithstanding this error of the court.
By the Court.— Judgment affirmed.