Sewell v. Eaton

6 Wis. 490 | Wis. | 1858

By the Cowd,

WiiitoN, C. J.

We lay out of the case the error relied upon by the counsel for the plaintiff in error, relating to the refusal of the judge to allow the letter of the defendant to be read in evidence to the jury, as we cannot tell, from the bill of exceptions, what its contents were. The bill of exceptions only informs us, that the plaintiff offered to read in evidence a letter written by the defendant, for the purpose of showing that he assumed to own the plank in controversy ; but whether the letter really did tend to show that fact, "we cannot tell. We cannot infer that the letter did tend to show it, and cannot therefore decide that the judge committed an error in rejecting theevider.ee. We shall confine ourselves, therefore, to the other error alleged, towit: the question of the non-suit for the reason that the testimony of the plaintiff did not show that he was the owner of the plank in controversy.

The bill of exceptions shows that the motion for the non-suit, which the judge sustained, was founded upon a single fact. It appears that the defendant moved for the non-suit “ on the ground that the title to the plank in controversy did not pass to the plaintiff by virtue of his purchase of said Potter because said plank were not measured.”

This is the sole ground for the non-suit. It appears from the testimony, that the plaintiff purchased from one O. R. Potter, a quantity of plank lying in different places, for the sum of eight dollars per thousand feet, of which those in controversy formed a portion, and took from Potter a written bill of sale of them ; that at the time of the purchase, the plaintiff paid Potter §110, toward the plank, in anoto which he held against him; that some of the plank had been sold by the plaintiff to other persons after his purchase of them from Potter, and had been delivered and measured. But it did not appear that those which were the subject matter of this suit had been measured, or the quantity ascertained in any way.

We think that the non-suit should not have been granted. Of course we must consider the sale of the plank to the plaintiff to have been 'bona fide, and must limit our inquiry to the single fact that the plank which are the subject of this suit had not been measured.

It is to be observed that the sale to the plaintiff was of a quantity which included those which, are the subject of this suit, and that some of them had been delivered and measured.

The counsel for the defendant in error contends that in sales of personal property, if anything remains to be done to ascertain the quantity or exact amount of the price to be paid, the title does not pass; and he has cited numerous authorities in support of his position. We are aware that the authorities upon this subject are not uniform, but those which we cite in support of our position, seem to be founded upon better reason than those which sustain the contrary doctrine ; especially so, when it is apparent, as in this case, that it was the intention of the vendor to transfer the title, and of the vendee to accept it. See Riddle vs. Varnum, 20 Pick., 280; Macomber. vs. Parker 13 Id., 175; Phillips vs. Bristol, 2 Barn & Cres., 511; Tarling vs. Baxter, 6 Id., 360; Rugg vs. Merritt, 11 East, 210.

The judgment reversed and a new trial granted.