26 Wis. 34 | Wis. | 1870
It is entirely clear that the plaintiffs did not intend to absolutely deliver the goods in question, and part with the possession, until the price was paid. It was a cash sale, and the delivery and payment were to be simultaneous. By the contract, the plaintiffs were compelled to cut, make up, and nail down the carpets, and to make up and hang the curtains, and fix the cornices, in the defendant’s house. And until this was done, they could not insist upon payment. It is not like the case of the sale and delivery of a package
Although no exceptions were taken to the general charge on the trial, yet it has been argued here that this portion of it was unsound in principle, and calculated to mislead the jury to the prejudice of the defendant. But it seems to us to have been a very proper direction to give the jury, in view of the evidence. For it appeared that the plaintiffs waited a fortnight or more after the carpets were laid and curtains hung, before they attempted to reclaim the goods, but all the time trying to find the defendant to obtain the price. And not being able to find him, or procure their pay, they brought this action for the possession of the property. And one ground relied on to defeat a recovery was, that the plaintiffs, by leaving the goods in the possession of the defendant in the manner and for the length of time they did, without payment, had clearly waived their right to insist upon simultaneous payment, as a condition to their parting with the title Permitting property to remain that length of time in the possession of the vendee would doubtless in many cases be considered strong, if not conclusive, proof that the vendor waived immediate payment, and delivered the goods absolutely. But a case might arise, and
Again, it is said that the plaintiffs could not recover because they did not, before the commencement of the suit, demand the goods and refund the fifty dollars which they had received on account of the purchase-money.
But it seems to us a sufficient answer to this objection, to say that it appears that the plaintiffs made the best demand they could. The goods remained in the actual custody of the defendant’s wife and daughter, he being absent. The wife must be deemed to be the agent of the defendant for the purpose of a demand and refusal.
In respect to refunding the money, one of the plaintiffs testifies that he offered the defendant’s wife the fifty dollars if she would give up the goods. He says, upon that point: “ I told her if we could not get the money, I would have the goods, and have them that day.” And, in answer to the question as to what she said about paying the money, the witness further testi
Again, it is said that the verdict fails to find the right of property in one party or the other. The complaint alleged the wrongful detention of the goods, the property of the plaintiffs. The answer denied this allegation, and set up property in the defendant. The jury found “ for the plaintiffs in this action, and that the goods and chattels mentioned in the complaint are, and were at the time of the commencing this action, wrongfully detained by the defendant from,” etc. This, upon the issues, is equivalent to a special finding of the right of property in the plaintiffs.
These remarks upon the general questions involved in the cáse render it unnecessary to specifically notice the exceptions taken to the instructions given at the request of the plaintiffs, as well as those taken to the refusal of the court to give those asked by the defendant.
By the Court. — The judgment of the circuit court is affirmed.