Kellogg v. Costello

93 Wis. 232 | Wis. | 1896

Winslow, J.

The main question in the case is whether the contract of conditional sale of the lumber in question entered into betAveen the Huntress & Brown Lumber Company and the plaintiff’s assignor May 3, 1891, and filed July 27th following, satisfies the statute (sec. 2317, R. S.) Avhich provides that no contract of sale of personal property, by Avhich the title remains in the vendor aud the possession in the vendee until the purchase price is paid, shall be valid as against any person save the parties and those having notice thereof, unless it be in Avriting subscribed by the parties, and filed in the office of the city clerk. Had the Huntress & Brown Lumber Company OAvned the lumber when this contract was made, there Avould be no question as to the validity of the contract, after its filing in the proper office; but it is ATigorously claimed that because the Huntress & BroAvn Lumber Company Avere simply agents, and the real title remained in Costello, who did not sign the contract, it follows that the statute requiring the contract to be signed by “the parties” has not been complied Avith, and the contract is invalid, as against the plaintiff. S. L. Sheldon Co. v. Mayers, 81 Wis. 627. We are satisfied, however, that this contention ought not to prevail. The Huntress & Brown Lumber Company Avere not simply brokers for the sale of this lumber. They were agents Avho had an interest in the property. They had possession of the lumber, with power to sell and retain their commission and cost of rafting and towing. Such agents are called “ factors,” and their rights and powers are more extensive than the powers of a mere broker. They have a special property in the goods, and a lien upon them for their • commissions. They may sell for the principal in their own names, and sue in their own names for the price. Edgerton v. Michels, 66 Wis. 124, and cases cited. Such being the case, it is difficult to see why the contract in question does not satisfy the law. In contemplation of the law the factor is the party. He has a special ownership of the property. He may sell in his own name and sue in his own name, and the written contract which he has made is simply a contract which the law authorizes him to make, and in making it he effectually represents both himself and his principal. The purpose of the law is manifestly to place on record the fact that one who has the possession and apparent ownership of property is not in fact the owner, so that parties dealing with such person may have the means of ascertaining the fact that he is not the owner, and thus may not be misled into extending credit on the strength of such apparent ownership. This purpose is as fully sub-served, under the circumstances of this case, by the contract in question, as though it had been signed by Costello himself. We hold that this contract has been, in legal effect, subscribed by “ the parties ” to the sale.

It will be observed from the statement of facts found that the contract was executed May 3, 1891, but that it was not filed in the office of the city clerk until July 27, 1891, and that the lumber was all delivered prior to August 14, 1891, when Watkins made his voluntary assignment to the plaintiff. It does not appear, however, when "delivery was begun, nor how rapidly it was delivered, nor bow much was delivered prior to the filing of the contract. The only witj ness on the question says, “ It was delivered along from the time the contract was entered into until some time in August, or it may have been July.” There was no evidence produced or offered by the plaintiff to show that the claims of any of Watkins’s creditors accrued between May 3d and July 27th on the faith of Watkins’s supposed ownership of the lumber, but near the close of the trial the plaintiff moved for a reference to ascertain the number of creditors whose claims accrued between said last-named dates on the strength of Watkins’s ostensible ownership of the lumber, claiming that there were perhaps sixty of such creditors. The motion was denied, and error is alleged on this ground. We know of no practice of this kind. Certainly this court will not reverse a judgment for failure to grant a reference asked for in the midst of a trial, save under exceptional circumstances not appearing here. The plaintiff had brought his action and gone to trial. He was apprised by the answer that it was claimed by the defendant that the title of the lumber had never passed. Reasonable diligence in preparing for trial would seem to require a thorough examination of the files of the office of the city clerk, and such an examination would have revealed the contract relied upon by the defense. If this contract could be defeated by showing that the claims of certain creditors accrued before its filing, the plaintiff should have been prepared to show these facts before going to trial. But if the plaintiff was taken by surprise, as he now claims, and made a case showing himself entitled to some delay or consideration at the hands of the court, his proper motion would undoubtedly be a motion for continuance, instead of a motion for a reference.

There are no other questions which require attention.

By the Oowrt.— Judgment affirmed.

Maeshall, J., took no part.