69 Wis. 643 | Wis. | 1887
It is urged that the complaint in the attachment suit “alleges a cause of action esa delicto,” and hence that the attachment was improvidently granted, and no justification in the hands of the sheriff. The substance of the complaint is stated above. It is to the effect that Lomas converted to his own use the moneys and notes he received as agent. There is no allegation that such conversion was wrongful, unlawful, or fraudulent. The evidence in that ease probably tended to prove that such conversion was tortious. But in such cases it is always competent to waive the tort, and sue on the contract. Walker v. Duncan, 68
The court charged the jury, in effect, that whatever machinery Lomas had received from the plaintiff under the contract, and not paid for at the time of the attachment, was, as between it and Lomas, the property of the plaintiff; that the proof showed that the contract was not filed before the attachment, as required by sec. 2317, E. S. That section provides that “no contract for the sale of personal property, by the terms of which the title is to remain in the vendor, and the possession thereof in the vendee, until the purchase price is paid or other conditions of sale are complied with, shall be valid as against any other person than the parties thereto and those having notice thereof.unless such contract shall be in writing, subscribed by the parties, and the same or a copy thereof shall be filed in the office of the clerk of the town, city, or village where the vendee resides,” etc. Exception is taken because the court, in effect, submitted to the jury the question whether, at the time of levying the attachment, the defendant knew of, or had reasonable cause to believe in, the existence of such contract, or that Lomas was not at the time the owner of such machines. The court also charged, in effect, that, in making the attachment, the sheriff acted, in a sense, as the agent of the Milwaukee Harvester Company, and any notice the company, or its authorized agent in the matter of said suit, might have had at the time of the attachment, would be notice that would bind the defendant as such sheriff. There can be no question but what the charge was sufficiently favorable to the plaintiff, if the contract was “ for the sale of personal property ” upon the condition named in the section, and we are clearly of the opinion that it was.
The contract being of the nature indicated, and not having been filed as required by the statute, the title to the seven Rawson machines mentioned must be conclusively
By the Court.— The judgment of the circuit court is affirmed.