75 Wis. 205 | Wis. | 1889
We do not discover any error in this case which should reverse the judgment. The question in the case is, Does the evidence show a complete executed sale and purchase of the lumber, so as to vest the title in the defendant and make the property his at the time it was destro3'ed by fire? On the evidence, the jury must have found that this was the nature of the contract, and that the negotiations of the parties did not result in a mere exec-utory contract of sale, as the defendant claims. The evidence as to the actual contract made is the testimony of the parties themselves, and some letters relating to the contract which passed between them. The contract was made between the plaintiff in person and one Bullock, who acted in the transaction as the agent of the defendant. The subject matter of the contract was eleven piles of sawed lumber in the plaintiff’s mill-yard at Spen.cer. The defendant resides in the city of Eau Claire. There was a written memorandum of the terms of the sale made in Bullock’s pass-book, which was signed by the plaintiff. This memorandum could not be, or was not, produced on the trial, because Bullock had left the country and taken the passbook with him. The parties do not fully agree as to the language of this written memorandum or bill of sale.
The plaintiff testified, in substance, that the sale was made on the 9th of November, 1885, between him and Bullock, acting for the defendant. He says he sold on that day eleven piles of shop common lumber, selects and better, estimated to contain 270,000 feet; that the terms of payment and amount of payments were $14 per M. for shop
Along in March, 1886, a controversy arose between the parties about the terms of the contract, the time of shipment of the lumber, and time of paymeiit therefor. In one of his letters, written in March, the defendant claimed he was to have sixty days from March 9, 1886, to pay for the remainder of the lumber in the yard, and, in his testimony on the trial, said he did not understand that there was anything in the contract of sale which limited the time of the shipments of lumber. Shipments of lumber were made from time to time, and payments were made by the defendant for such shipments. In August the two piles of lumber not shipped were destroyed. The defendant had seen the written memorandum of the contract in Bullock’s pass-book, and testified as to its contents. He made the agreement read differently from the agreement as testified to by the plaintiff.
In this state of the evidence, the trial court submitted the question to the jury, to determine what the real contract -was, instructing them as to the difference between an
Counsel do not essentially differ as to the law applicable to a sale of personal property, nor that, if the contract was that this sale was to -be complete and absolute as between the parties, this intention must prevail. Upon the evidence adduced, it was necessary to submit the question to the jury as to the terms of the contract and the intention of the parties as it might be inferred from all the circumstances attending the sale. The case seems to have been fairly submitted for the jury to determine what the facts as to the sale were, and as to the real intention of the parties. The exceptions taken to the charge, ure think, are not well taken, and the cause was fairly submitted upon the evidence. If the intention of the parties was that the title of the lumber should pass at once on the sale which was made, there was nothing in the situation of the property or its condition which would defeat that intention. A perfect delivery could be made, and, though the plaintiff was to load the
It is further objected that the court erred in the admission of the testimony of the plaintiff as to his conversation with the agent, Bullock. This conversation was had sometime after the sale, and was about an expression in one of the defendant’s letters to the plaintiff, which was to the effect, that the writer supposed it was understood that the lumber was subject to “your” (the plaintiff’s) loss in case of fire. The plaintiff said he made his way to see the agent at the first opportunity, to see what the defendant meant by that remark. He then detailed, under objection, his conversation with the agent, and what Bullock said. The court admitted the evidence of this conversation, to show that the plaintiff dissented from the defendant’s view as to who owned the lumber, but held, and so instructed the jury, that any admissions of fact as to what the contract was did not bind his principal (the defendant), and that they could have no such effect given them. "Was the evidence objected to admissible for the purpose to which it was limited by the court? We think it was, under the facts disclosed on the
The court was asked to give an instruction in behalf of the defendant which was refused. The instruction, in substance, was that if the jury should be satisfied from the testimony that, before the amount to be paid for the lumber in question was known, or the quantities of each kind to be paid for could be ascertained, the lumber had to be scaled and graded, and such as would fill the contract selected and accepted and the balance rejected; and, if the jury should further find the time within which such selection and acceptance were to be made had not expired,— then the title .had not passed to the defendant, and he was not to sustain the loss by the fire. Whether or not this instruction was sound, as a proposition of law, we need not determine. It was certainly not applicable to the evidence as given on the trial. The undisputed evidence of the plaintiff shows .that when the sale was made he and Bullock identified the precise lumber sold; marked the piles and took their numbers; counted the courses and estimated the number of feet in each pile. This tended to prove a sale of those particular piles of lumber. It is true, the defendant testified that, according to his recollection of the written memorandum in Bullock’s pass-book, the lumber was to be delivered on the cars at Spencer, subject to the grading and tallying of Bullock; which might be the fact, and still the title to the lumber in the piles marked and selected pass to the buyer, if the parties so intended it should. We think there was no error in refusing to give the instruction.
By the Court.— The judgment of the circuit court is affirmed.