Hyland v. Bohn Manufacturing Co.

92 Wis. 157 | Wis. | 1896

The following opinion was filed November 26, 1895:

"Winslow, J.

This contract is, in substance, the same as the contract which was before us in Bent v. Hoxie, 90 Wis. 625. That the contract is a valid one, and that the vendors’ rights may be enforced by replevin when the purchase money is in •default, cannot be doubted after the decision which was made in that case, and which we have no disposition to review or modify. The plaintiffs, as they lawfully might do, retained the title to the logs and the lumber manufactured from the logs, as security for the purchase money. When the purchase price was in default, they brought replevin to enforce that security, and obtained the usual replevin verdict, by which their special property in the lumber was" fixed at the amount due them on their contract. The lumber having been bonded by the defendant and disposed of, the plaintiffs brought into court and surrendered their notes, and recovered judgment for the amount of their debt. No reason appears why they were not entitled to it. This is not an action brought to rescind the contract of sale, as seems to be supposed by the defendant, but an action to enforce that contract by a species of strict foreclosure of the security which the contract gives the vendors.

It is argued that no demand was made for the lumber before the action was begun, and so that the defendant was rightfully in possession. The uncontradicted testimony shows facts which were, in legal effect, the equivalent of a demand and refusal. The plaintiffs’ agent went tó defendant’s mill after default, and forbade further shipments, took possession of the lumber,. and placed it in charge of two-men. The defendant, some days afterwards, retook possession, and recommenced shipments, denying plaintiffs’ rights,, and by actual force overpowered the plaintiffs’ agent. After this a formal demand would be a useless ceremony.

It is said that the testimony shows an extension of the-time of payment of the past-due notes, and a consequent waiver of the default which had occurred. There is no evidence which shows any binding contract of extension. The evidence tends to show some voluntary promises of forbearance for a time, without consideration. These promises certainly do not constitute binding extensions, nor did they, preclude the plaintiffs from insisting on their rights upon the existing default whenever they chose to do so.

A motion was made on the eve of the argument by the appellant to send back the record for correction of the bill of exceptions, so that it should show that the written order directing a verdict, which appears in the record, was not in fact made until some time after the verdict was rendered; the contention of appellant being that the order directing a verdict, which was actually made, was oral, and did not require the deposit of the notes as a condition of judgment for the plaintiffs. It would be fruitless to send back the record for this correction, even if the fact was as appellant claims, because the judgment shows that the notes were in fact deposited in court before judgment was rendered. This being the fact, it is now immaterial whether the condition was in the order for a verdict or not. Furthermore, the printed case, prepared by the appellant, refers to this order, and states in so many words that it was the order for verdict made by the court, so it is manifest that there is no surprise. The motion is evidently an afterthought, and it comes too late. It must be denied.

We find no error in the record.

By the Court.— Judgment affirmed.

A motion for a rehearing was denied January 28, 1896.