109 Wis. 77 | Wis. | 1901
The timber contract before us was a contract for the sale of an interest in land.- Its terms are substantially identical with the terms of the contract involved in the case of Bent v. Hoxie, 90 Wis. 625. Whether the interest in the timber which was secured to the plaintiff be technically a reservation or an exception is a question of little moment. The contract secured to the plaintiff a paramount title to the timber until the purchase price was paid, which could be enforced by replevin as against the opposite party. These propositions are not open to doubt since the decision of this court in the case of Lillie v. Dunlar, 62 Wis. 198, which was followed by the cases of Bent v. Hoxie, supra, and Hyland v. Bohn Mfg. Co. 92 Wis. 157.
The Illinois & Wisconsin Company doubtless had an interest in the logs and lumber, but it was not a perfect title, but rather a right to acquiré title by payment of the price, which right could not ripen into title as against its vendor until such price was paid. Not having title itself, it could not convey title. These general common-law principles governing conditional sales of personal property where title is-not to pass until the purchase price is paid are supported by the great weight of authority. It is true that in many states, including our own, statutes have been passed requiring the filing or recording in some proper office of such conditional contracts of sale, in order to make them valid as against third persons (Stats. 1898, sec. 2317), but, as the sale here was a sale of an interest in real estate, instead of personal
In the case of Harkness v. Russell, 118 U. S. 663, the subject of such conditional sales and the rights of vendor and vendee as well as of the vendee’s creditors and transferees is learnedly discussed by Mr. Justice Beadley, and a great number of cases cited upon the subject from many states. The conclusion reached in the opinion is that, while there are some decisions (notably in Pennsylvania and Illinois) holding that an execution creditor or bona fide purchaser of a conditional vendee who is clothed with possession and apparent ownership of a chattel will be protected against the claim of the original vendor, still that such decisions are few in number compared with the overwhelming number which hold that, in the absence of fraud, conditional sales are valid and lawful as well against third persons as against parties to the contract. Among the states holding to the latter doctrine he enumerates Massachusetts, Connecticut, Maine, New Hampshire, Yermont, New York, Ohio, Indiana, Michigan, Missouri, and Alabama. It is to be noted that, so far as the rights Of a bona fide purchaser are concerned, the discussion was practically obiter, because the purchaser in that case had full notice of the rights and claims of the vendor before he made his purchase (see close of the opinion in that case). But the case definitely settles and adopts the general principle that, in the absence of fraud, an agreement of conditional sale is valid as well against third persons as against the parties to the transaction, and that a bailee of personal property cannot convey the title, nor subject it to execution for his own debts, until the condition- on which the agreement to sell has been performed.
We see no reason to question the correctness of the general
This principle is not only well established by numerous authorities, but some of them are from states which hold the general principle laid down in Harkness v. Russell, 118 U. S. 663. Thus, .in Spooner v. Cummings, 151 Mass. 313, the
So, in Lewenberg v. Hayes, 91 Me. 106, where the plaintiff, being a merchant, sold goods to the defendant’s vendor (also a merchant) knowing'they were to be put on sale, it was held that the defendant (an innocent purchaser) had a right to reply upon such apparent authority, and that the plaintiff was estopped from asserting a claim that he had not parted with title to the goods.
So, also, in Winchester W. W. & M. Co. v. Carman, 109 Ind. 31, it was held that a manufacturer and wholesaler of goods, who sells the same on credit and delivers them to a retail dealer for the express or implied purpose of resale, cannot reserve in himself the title which he can assert against innocent purchasers from such retail dealer. To the same effect are Fitzgerald v. Fuller, 19 Hun, 180; Devlin v. O'Neill, 6 Daly, 305.
Indeed, the proposition seems to be so clearly within the wrell-understood principles governing, estoppel in pais that authorities upon the exact point are hardly necessary. Consult, also, Leigh Bros. v. M. & O. R. Co. 58 Ala. 165; 1 Benj. Sales (4th Am. ed., by Corbin), § 448, p. 412; Pickering v. Busk, 15 East, 38.
But it seems to have been considered that this question has been settled adversely to the-defendants’ contention by the case of Lillie v. Dunkor, 62 Wis. 198. That was an ac
This case was followed by Wing v. Thompson, 78 Wis. 256, which was a case involving the rights of a conditional vendor of standing timber against a purchaser from the conditional vendee, the contract itself being substantially in the same form as the one now before us. In that case the defense of estoppel was relied upon by the defendants, and it was said in the opinion that “ a contract of this kind is not favored in the law, and the right to enforce the reservations as against a bona fide purchaser without notice must be based upon evidence which shows that the plaintiff has not done anything in regard to such property while in the hands of his vendee which would amount to a waiver of his right or-estop him from asserting his title against a purchaser from his vendee.” The following instruction, proposed by the defendant, was refused: “ In determining the question of waiver or license, the jury are instructed that the plaintiff’s permitting the logs to be moved from the town of Bayfield to the town of Washburn, and permitting the- logs to be manufactured into lumber, extending the time of payment of the last $3,000, and failure to assert any claim to the logs or lumber for more than one year after the last note became due, is evidence tending to prove waiver of lien, and license and permission to manufacture into lumber and sell.”
We conclude, therefore, that there can be no question in this state but that a conditional vendor may, by his acts, be estopped from asserting his title as against a purchaser of his vendee; and the serious question in this case is whether the facts show such an estoppel. Bardon v. McCall, 108 Wis. 181. The simple principle is that if the conditional vendor, having given the vendee possession and apparent
Do the facts proven bring the plaintiff within this principle ? In order to properly answer this question, a brief review of the main facts will be useful. The plaintiff’s president, Mr. Weyerhauser, transacted all of the business on the part of the plaintiff. In November, 1895, the Illinois & Wisconsin Lumber Company was engaged in the logging and lumbering business, having pine lands in Lincoln county, and a mill at Merrill, and an office in Chicago. All these facts Mr. Weyerhauser knew at the time the negotiations commenced, except that he says that he did not know where their mill was, but admits that he learned that it was at Merrill after they began to cut logs. In November, 1895, knowing that the Illinois Company was manufacturing and selling lumber, he orally negotiated the sale of the logs in question to them. He was informed that they wanted to cut the timber right away and get it out with other timber which they had in the vicinity. Unquestionably he knew that it was the intention to manufacture and sell the lumber when manufactured, because that was their business, and any other conclusion would be absurd and an imputation upon his business sagacity. Knowing these facts, he took absolutely no measures to preserve anywhere any indication that the title to the logs remained in the plaintiff. He caused no mark to be put upon them, and, on the contrary, tacitly acquiesced in allowing the Illinois Company to mark them, with their own mark, and this while knowing that they were to be mixed indiscriminately with the other logs of the Illinois Company. Knowing or having every reason to believe that they were to be manufactured into lumber, he took no measures to see that the lumber
The extensions of time for the payment of the last half of the purchase money are also facts which have a bearing on the question. The last payment was to be made July 1, 1896, but it was extended until September 1st. At this time application was made for further extension, and it was granted by forbearance of any attempt to collect until after the failure in January, 1897. At the time of application for the last extension it appears also that the plaintiff had express notice that the Illinois Company was actively en
Under the facts shown, we think the court should have found as a fact that the plaintiff was estopped from assert-, ing its title. Had the case been tried before a jury, the question would have been one for the jury under proper instructions, as held in Wing v. Thompson, 78 Wis. 256.
By the Gourt.— Judgment reversed, and action remanded with directions to render judgment for the defendants dismissing the complaint.