124 Minn. 183 | Minn. | 1914
This is an action in replevin to recover possession of a quantity of timber products located in the yards of defendant McKinley, at Brainerd, Minnesota. The action was commenced and the property seized under writ of replevin in September, 1908. Plaintiff recovered a verdict. Defendants appeal from an order denying their motion for a new trial.
Replevin is a possessory action, and it was incumbent upon plaintiff to prove its right to immediate possession. Plaintiff’s claim is that it had purchased the property in question from defendant McKinley. It claims that, by virtue of the contracts between them, title passed to plaintiff, and, with it, right of possession. There is no claim that plaintiff was entitled to possession if title did not pass by these contracts. This is the first question to be determined.
The facts, so far as here important, are as follows:
On October 1, 1906, plaintiff and defendant McKinley entered into a contract, designated Exhibit B, by the terms of which, among other things, defendant McKinley agreed to sell and deliver to plaintiff a quantity of cedar telegraph and telephone poles and also railroad cross ties, at prices fixed therein. Plaintiff agreed to make certain advances as the work progressed. It is conceded that this contract was'
McKinley proceeded to carry out this contract. Some of the material he manufactured himself, and some he procured by contracting with others. It soon developed that with his limited capital he could not fulfil his contract without larger advances than the contract called
This provided that:
“The first party (McKinley) in consideration of the premises herein, hereby sells and transfers the title to the second party (plaintiff) of all material that has been manufactured under said contract to date * * * .” This paragraph is unequivocal, but it is not very important here because the material “manufactured under said contract to date” of Exhibit J composed a very small part, if any at all, of the material taken under the writ of replevin. Exhibit J contains the further provision: “The party of the first part further assigns and sells to the party of the second part all interest in all contracts he has of every nature and description for the manufacture and sale of material of the kinds mentioned in said contract. The second party, however, does not assume any obligations with reference to the terms of said contracts except such as it shall deem advisable. Provided delivery of material under any of said contracts with third parties shall be accepted as delivery under the original contract.”
This paragraph is the important one. It clearly assigns all contracts McKinley had with third parties for the manufacture of material of the kinds mentioned in Exhibit B, and it operated to transfer to plaintiff the title to all such material as soon as McKinley acquired title to it under such contracts. But this by no means covered plaintiff’s case. It would appear that a large part of the material taken under the writ of replevin was gotten out and manufactured or was in process of manufacture by McKinley himself, and, unless the title to this also passed to plaintiff, the present verdict cannot stand.
Plaintiff’s contention is that Exhibit J did operate to transfer to plaintiff the title to this material. Plaintiff’s argument is that the assignment by McKinley to plaintiff of “all interest in all contracts he has of every nature and description for the manufacture and sale of material of the kinds mentioned in said contract,” operated as ’ a transfer by McKinley to plaintiff of Exhibit B, the contract subsisting between themselves, and incidentally as a transfer of title to
Plaintiff’s right of recovery is predicated solely on the theory that Exhibit J passed title to the material taken in replevin. Since this theory is, in our opinion, untenable, as to at least a large part of the material, the verdict cannot stand.
In view of a new trial, some of the court’s rulings upon evidence should be considered.
The fact that some of the entries were made after suit was commenced does not render them inadmissible. See Fortier v. Skibo Timber Co. 111 Minn. 518, 127 N. W. 414.
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As was said in Seligman v. Estate of Ten Eyck, 60 Mich. 267, 276, 27 N. W. 514, 517: “From the nature of the business it cannot always be possible to show more than was shown here.” See also Sullivan v. Godkin, 167 Mich. 663, 133 N. W. 481.
It seems highly desirable that on a new trial the issues be so framed that a full accounting and determination may be had of all matters in controversy between these parties, in order that this single lawsuit, when it is concluded, shall put an end to their litigation.
Order reversed and new trial granted.
On appeal from the clerk’s taxation of costs the following opinion was filed on February 3, 1914:
Per Ouriam.
The item $170 for copying exhibits is disallowed. The order settling the case shows that a transcript of these exhibits was incorporated in the settled case. The motion for a new trial was made on this settled case. The expense thereof was a disbursement in the trial court. If further transcripts were made later the expense thereof cannot be taxed.
The item “printer’s fees printing paper books, 904 pages at 75c. $678” is reduced $122.50, 150 pages of the portions objected to being unnecessary to present any assignment of error made.