Helander v. Wogensen

179 Wis. 520 | Wis. | 1923

Owen, J.

The lower court rendered judgment in favor of the defendant and against the plaintiff, notwithstanding the verdict, on the ground that the original contract of August 27th was void because it included defendant’s homestead and was not signed by his wife. That conclusion was imperative by virtue of the statute, sec. 2203, Stats., as construed in Rosenthal v. Pleck, 166 Wis. 598, 166 N. W. 445. The contract being void, the plaintiff acquired no rights under, it; or anything in the nature of right, title, or interest in and to the real estate or. personal property described therein. The plaintiff, therefore, had no interest in the feed' consumed by defendant’s stock or the hay which he removed from the premises at the time the feed was consumed or the hay removed. There was nothing in the nature of a valid- contract between the parties until January 22d, when the deed to the farm was executed and possession of the personal property transferred. The feed 'and hay consumed and appropriated up to that time was the property of the defendant, in and to which the plaintiff had acquired no interest whatever. It was his own property, and in disposing of it as he did defendant in no manner invaded the rights of the plaintiff. The deal as concluded on January 22d related only to such personal property as was then on the farm, the possession of which was at that time transferred to the plaintiff.

We can discover no theory upon which the deal as concluded can be construed to include feed which had already been fed, or hay not then on the premises and which was not delivered to the plaintiff. In other words, the first valid and binding agreement between the parties was engendered January 22d and, so far as personal property involved is concerned, it related only to such personal property as was then in existence and on the farm. At no time did defendant efficiently undertake or agree to vest plaintiff with title to any other personal property. In order for the plaintiff to recover either for breach of contract or conversion he must trace' his title to the personal property appropriated through the contract of August 22d, which, under the statute, was void. Being void, it was ineffectual to invest him with any interest in the property. At all times between August 27th and January 22d it remained the property of the plaintiff and he was at liberty'to make such disposition thereof as he saw fit. This is especially true in view of plaintiff’s admission that he knew before closing the deal on January 22d that the feed had been consumed and the hay removed and asked the defendant to pay him for it.

By the Court. — Judgment affirmed.