108 Wis. 584 | Wis. | 1901
The complaint alleges, in effect, that the plaintiff is a corporation existing under the laws of this state, engaged in the manufacture and sale of electrical apparatus and machinery, having its principal place of business at Madison, and that the defendant is a corporation existing under the laws of this state, having its principal place of business at Milwaukee; that this action is brought to recover $145, as the agreed price of one eight horse power motor, furnished, sold, and delivered by the plaintiff to the defend
Error is assigned because the court refused to direct a verdict in favor of the plaintiff for $130, or to set aside the verdict and grant a new trial. This is based upon the theory that the motor was the property of the plaintiff up to the moment when it was sold to the defendant by Julius Andrae <fe Sons Company, acting only as agent of the plaintiff, and liable to account to it only in that capacity. In other words, it is claimed that thé verdict is not supported by the evidence.
It appears from the record, and is undisputed, that September 3, 1891, the plaintiff entered into a written contract with Julius Andrae & Sons Company whereby, in effect, the latter company was appointed and constituted the plaintiff’s sole and exclusive agent for the sale of its electric generators and motors in Milwaukee for the term of three years, unless sooner terminated as therein provided; that in making such sales the Andrae Company was to have a commission as therein stated; that all proceeds of such sales were to be immediately transmitted to the plaintiff, and, when completed by final payment, the Andrae Company was to be credited with the amount of their commissions and compensation, as therein provided; that such contract provided that it might be terminated by either party thereto upon sixty days’ prior written notice. There is testimony on the part of the plaintiff to the effect that in the latter part of March, 1898, or in April of that year, the plaintiff gave such written notice for such termination of the contract, and that such sixty days expired a short time prior to July 15, 1898. It is in evidence and undisputed that on March 10, 1898, and
Northern Electrical Manufacturing Company.
Madison, Wis., March 10, ’98.
J. Andrae & Sons Co., Milwaukee, Wis.: To 1 6 H. P. 2,202 motor, secondhand.$100'
1 8H. P.2,202 “ “ ... 180
1 15 H. P. 2,202 “ “ . 210
$410
On consignment ■ Entered.
There is evidence on the part of the defendant to the effect, that the first secondhand motor so named on the bill of consignment to the Andrae Company at the stated price of $100 was sold by that company April 4,1898, for $130, and thereupon it settled with the plaintiff therefor by paying $100, and also that the third secondhand motor so named on such bill of consignment to the Andrae Company at the stated price of $210 was sold by that company April 19, 1898, for $225; that the other secondhand motor so named on such bill of consignment to the Andrae Company at the stated price of $130 was sold July 15, 1898, by that company to the defendant herein for $145, which is just the amount claimed by the plaintiff in its complaint; that a few minutes after such sale the vice-president of the Andrae Company informed the secretary of the plaintiff that he had sold that motor to the defendant herein, and that the secretary replied : “ That is good. I will notify our folks at Madison to take it off the consignment and put it on the general account,”— and that the vice-president of the Andráe Company acquiesced; that prior to the time when the plaintiff made such consignment, March 10, 1898, the secretary of the plaintiff was in the store of the Andrae Company, and
On July 15, 1898, and after such sale to the defendant, the Andrae Company wrote to the plaintiff to the effect that it had that day sold and delivered to its customer the secondhand motor which the plaintiff charged to it at $130 on consignment account March 10, 1898. That letter was received by the plaintiff July 16, 1898. On the same day the plaintiff wrote to the defendant, insisting that that motor must be settled for directly with the plaintiff; that the An-drae Company never had any license to sell for the plaintiff except on written contract; and that in selling the motor in question it had gone outside of its former arrangement. To that letter the defendant replied to the effect that the purchase was made by it from the Andrae Company, and that the defendant could not recognize the plaintiff in the deal at all.
It is undisputed that the sale was actually made to the defendant by the Andrae Company. It is true that the plaintiff’s secretary was at the Andrae Company’s place of business July 15, 1898, for the purpose of removing all unsold machinery belonging to the plaintiff, including the motor in question; but it is conceded that when he was informed by the Andrae Company that it probably had a cus
Exception is taken because, after charging the jury to the effect that, if they found that the Andrae Company made the sale as the mere agent or factor of the plaintiff, then they must find for the plaintiff, the court further charged the jury as follows: “But if you determine from all the credible evidence in the case that the Julius Andrae Sons Company was in fact a purchaser, and became liable for the price of the motor when sold, as a principal debtor, then your verdict in the case should be for the defendant. A consignee may, by the terras of his agreement, be the agent of the consignor until the consigned goods are sold, and
By the Court.— The judgment of the superior court of Milwaukee county is affirmed.