134 Wis. 24 | Wis. | 1907
Tbe trial of this case, as also tbe record in this court, is very confused and complicated. Tbe errors assigned are forty-seven in number and go to multitudinous details of tbe trial. Tbe situation would perhaps be simplified by a brief statement of tbe issues as we extract them from this record. Those issues are: Eirst, did tbe plaintiffs purchase of George McNinch, for agreed price, namely, a carload of feed, certain ascertained logs cut by him on bis own land, or did they sell that carload of feed upon tbe credit of Peters & McNinch? -Second, if there was such purchase of tbe logs, was there a delivery sufficient as between tbe parties to transfer title? Third, was there a conversion of logs by tbe defendant ? And, fourth, tbe value of plaintiffs’ logs taken by tbe defendant. We do1 not discover any question of actual fraud if tbe first issue be resolved in favor of tbe plaintiffs’ theory of a sale. There is no showing of insolvency on tbe part of George McNinch or even of the firm of Peters & McNinch. If a sale was made at all it was made for a presently paid consideration, tbe adequacy of which is not questioned, and there is no showing that at that time there was any contemplation of sale of the logs to the defendant or any one else. Hence the second issue is as above stated, and does not involve either the publicity of delivery or continuance of possession, absence of which by sec. 2310, Stats. (1898), is made presumptive evidence of fraud. Missinskie v. McMurdo, 107 Wis. 578, 83 N. W. 758; George Walter B. Co. v. Lockery, post, p. 81, 114 N. W. 120. Any such presumption is overcome beyond dispute. There was certainly some evidence on each of these issues sufficient
Other assignments of error are either so immaterial to the result or so induced by the peculiar events of the trial as not to be likely of recurrence that we may forego discussion of them here.
Eor the errors above mentioned in exclusion of evidence the judgment must be reversed.
By the Gourt. — Judgment reversed, and cause remanded for a new trial.