117 Wis. 558 | Wis. | 1903
The return perhaps leaves uncertain what of the statements made by the relator’s agent, Knight, on August 27th, were sworn to and so made evidence on August 30th. That, however, is not very material, for he testified on the latter date that all the assessed lumber had been sold before May 1st, and produced in evidence the contracts of sale, so that, if those contracts should be construed as effectual to pass title, there, was e.vidence before the board to
The record discloses two classes of other evidence: First, certain letters and affidavits from those to whom the lumber was sold; and, secondly, the sworn testimony of witnesses taken before the board September 3d in absence of, and without notice to, the relator or his representative. The first class obviously is not evidence, under the rule of State ex rel. Giroux v. Lien, 112 Wis. 282, 87 N. W. 1113, and could not justify disregard of relator’s evidence. As to the second class, a novel question is raised by appellant, who contends that the board cannot so receive evidence without at least giving an objector notice and opportunity to be present. The statute places no such restriction on the board expressly, and the implication thereof must be at least clear and necessary to warrant the court in importing it into the statute. These boards, while they act judicially, are not courts, but are part of the machinery of taxation, wholly within the power of the legislature to create and regulate. State ex rel. Ellis v.
This situation of the record presents, as the nest question, the construction and effect of the written contracts as to the passing of title of the lumber mentioned in them. As that question is resolved one way or the other, they either confirm or contradict Knight’s testimony as to the ownership of much of the lumber. The question when title of personal property-passes from seller to buyer is often one of much doubt and nicety, especially when the property is of such character and so situated as to be incapable of physical tradition from one to the other. Since bargain and sale is the most frequent form of business transaction, it is not surprising that the question suggested should have been among those most often considered by courts, and therefore elucidated or clouded by great variety of distinctions and refinements. The ultimate rule to be deduced from all the authorities is, however, the reasonable one, namely, that, when neither the statute of frauds nor rights of creditors are involved, the title passes when the parties intend it to. Upon analysis of the many decisions and dicta declaring the necessity of one or another circumstance, or the prohibitive effect of certain other facts or conditions, it will be found that only rules of evidence are promulgated, and that certain facts, or the absence of others, are held to confirm or refute the inference, as a fact, of an intent that title shall pass at any given stage of the transac
Another error apparent in the written decision filed by the trial court consists in the declaration that there was no- proof that the contracts of sale were executed or became complete prior to May 1st. The dates of the several instruments appearing on their face were sufficient prima facie proof of the times of their execution, but as to some 4,800,000 feet of lumber the oral testimony of Wiggins confirmed the written dates.
Erom what has already been said, our conclusion is obvious that there was undisputed affirmative evidence that of the 9,350,000 feet of lumber found on the East End Mill dock on May 1st and assessed to Knight & Vilas approximately 6,800,000 feet had been sold and did not belong to them; hence that it was a breach of the statutory duty and jurisdiction of the board of review to refuse to act upon that evidence and to- strike out of the assessment roll at least so much of the assailed assessmeirt. Their action in that regard, as well as in adding other property, should have been reversed. If the board of review had decided to reduce the assessment in question to approximately 2,650,000 feet, the present record might have supported them in retaining that amount. This they did not do, however; on the contrary, they made a decision contrary to law, and which cannot be allowed to stand. The board of review no longer being in existence, there can be no remission of the record to them with suggestion of a proper decision. The court has no choice, therefore, but to wholly reverse and set for naught the action of the board of review in retaining in the roll the assessment of $112,200 on lumber against the relator.
A suggestion is made by respondent that the lumber might, under the law, have been assessed to relator or to Knight & Vilas as being agents in charge or possession, under sec. 1044, Stats. 1898. We, however, find nothing in'the record to sup
By the Court. — Judgment reversed, and cause remanded with directions to render judgment reversing entirely the action of the board of review.