70 Wis. 620 | Wis. | 1888
The plaintiff was a manufacturer of lumber in the city of Oshkosh, and the defendants were manufacturers of sash, doors, and blinds, on the opposite side of the street. About the 9th day of August, 1883, the defendants bought of the plaintiff 600,000 feet 'of plank, partly seasoned and then piled up in the plaintiff’s mill-yard, and 400,000 feet of the same kind of lumber, to be sawed and to be piled up in the plaintiff’s yard in the same manner, but in another place nearer the defendants’ factory. JThe terms of the bargain were that the defendants should pay for said lumber at the rate of $14 per thousand for shop common, $24 per thousand for third clear, and $34 per
This action is brought to recover the balance due for the 400,000 feet. The defense is that which is not uncommon in such cases where the property has been burned, that, at .the time of the burning, the 400,000 feet, or any part of it, had not been delivered to the defendants or accepted b,y them. The case has been tried twice, and judgment rendered for the plaintiff. The evidence on both trials was substantially the same. From the first judgment an appeal was taken to this court, and the judgment reversed on the sole ground that the jury failed to find upon the only material issue, whether the 400,000 feet had been delivered or accepted before the fire. 65 Wis. 463. On the last trial, the jury found, in answer to the ninth question, that “ there was a delivery of this 400,000 feet of lumber tendered by by the plaintiff to the defendants about October 1, 1883; ” and to the tenth question, that “ the defendants accepted the delivery of that lumber; ” and to the eleventh question, that “ it was the intention of both parties, and the agreement between them, that the title to this 400,000 feet of green lumber should pass to the defendants upon the lumber being piled and marked by the plaintiff and notice thereof given to the defendants.” These findings fully supply the defects of the former verdict, and answer the requirements of the former decision. The two trials of this case, and the arguments upon the law upon both appeals, have been most ably conducted by the very ablest of lawyers on both sides, and the case is both important and interesting. But we cannot but think that the grounds of the controversy have been somewhat magnified, and the questions are very technical. The law is so well settled in this class of cases as to be almost, if not quite, elementary. In such a case there is no need of stumbling upon the technical terms “ delivery
On the merits of the case, Ave are not asked to disturb the A’erdict, but certain errors of the trial court are alleged, Avhich the learned counsel of the appellants claim affected the merits of the case or misdirected the jury.
"We have carefully examined the exceptions, and Ave cannot find that any of them were material to the merits abd real justice of the case, except, perhaps, that one relating to the charge of the court as to the effect of the notice to the defendants that the lumber Avas ready for them, piled and marked, and the legal effect of the defendants’ delay in expressly accepting or rejecting the same for an unreasonable time. That instruction was as follows: “ If the lumr
Ve find no error in the record which ought to reverse the judgment.
By the Court.— The judgment of the circuit court is affirmed.