30 Wis. 90 | Wis. | 1872
Tbe original contract Detween tbe Howard Mill Co. and tbe McDonalds, was that tbe latter should furnish and deliver to tbe company in its boom at Fort Howard, a specified quantity of pine saw logs. Tbe evidence tends to show that there was a valid modification of tbe contract made by tbe parties after it was executed, to tbe effect that tbe McDonalds should put tbe logs on tbe bay shore for tbe mill company, and that as tbe logs were placed there they should become tbe property of tbe company. If tbe contract was thus modified, tbe title of tbe McDonalds to tbe logs, as fast as they were put on tbe bay shore, vested in tbe company, until tbe quantity equalled that which tbe contract called for. Tbe proposition that it was competent for tbe parties to so contract that tbe McDo-nalds’ title to tbe logs would pass to tbe mill company by tbe mere act of placing tbem upon tbe bay shore, and without any other act or ceremony whatever, is too well settled to require argument or citation of authorities to sustain it.
But tbe court instructed tbe jury substantially that although sucb contract bad been made between tbe McDonalds and tbe mill company, and although tbe McDonalds got out tbe logs and delivered tbem at tbe designated place in apparent performance of their agreement, still no title thereto passed to
Were tbe law otherwise, then any person might sell property, receive payment therefor, and actually deliver it to tbe vendee, who purchases in tbe utmost good faith; and yet, afterwards, when tbe property is seized by a creditor of tbe vendor on attachment or execution, tbe title of the purchaser would be liable to be defeated, if tbe vendor should testify tbat when be delivered tbe property to tbe vendee be did not intend to deliver it to him at all, but cherished tbe secret purpose of asserting bis own title thereto at some future time. Take another illustration. A. sells a horse to B. and agrees to place him in tbe stable of C., and tbe contract is, tbat when be does so, tbe title thereto
We hold, therefore, that if the contract was modified as claimed, a delivery of the logs at the designated place by the McDonalds vested their title thereto in the defendants, the Howard Mill Co., although the McDonalds at the time of such delivery might have secretly determined not to let the company have the logs but to dispose of them to other parties.
We are not here passing upon any questions which may be raised under the statute of frauds, in respect to the actual possession of the property in controversy.
It necessarily follows, from the foregoing views, that the circuit judge erred in his charge to the jury, in the particular hereinbefore specified, and for that reason there must be a new trial.
By the Court — Judgment reversed and a venire de novo awarded.