United Shoe Repairing Machine Co. v. Asoumanakis

172 Wis. 102 | Wis. | 1920

Eschweiler, J.

We have set out above at considerable length the contract between Schlifkin and the plaintiff concerning the machines in question for the reason that it was the view of the trial court that such agreement was in substance a conditional sale, and, not having been recorded pursuant to the provisions of the then existing sec. 2317, Stats., was void as to subsequent purchasers from Schlifkin.

, We shall not take up the different elements of the contract in detail, but an examination of the same is sufficient to show that on its face it was not a conditional sale but a lease or license merely, and that title was expressly reserved to and continuously remained in the plaintiff. It was a bailment only, and the relátionship between plaintiff and Schlifkin was not that of vendor and vendee. There is no testimony to impeach the transaction between plaintiff and Schlifkin, he not being a witness, or to contradict the express terms of the writing. It was such a valid agreement as the parties might make and conveyed no title to the personal property involved to Schlifkin. 6 Corp. Jur. 1086; McKay v. Mace, 23 Fed. 76; Baker v. Priebe, 59 Neb. 597, 81 N. W. 609; Singer M. Co. v. D. Wolff & Co. 70 N. J. Law, 127, 56 Atl. 147.

Having no title himself, none could pass either by sale directly from him or by virtue of the sale in July'under the execution. Monitor M. Co. v. Jones, 96 Wis. 619, 72 N. W. 44; Ford M. Co. v. Maeder, 171 Wis. 263, 177 N. W. 39; Carney v. Emmons, 9 Wis. 114, 116; 17 Cyc. 1299; 10 Ruling Case Law, 1324; Buxton v. Pennsylvania L. Co. 221 Fed. 718, 721; Mitchell v. Hawley, 83 U. S. (16 Wall.) 544, 550.

There is no evidence here which would warrant a finding of any fraud by Schlifkin in the nature of pretended ownership of said articles to secure credit, much less anything akin to fraud participated in by plaintiff which prevents it asserting ownership. .

Considerable reliance seems to have been placed by the trial court upon a conversation between one of the plaintiff’s representatives and the defendants and their attorney some months after the execution sale in July, 1918, and a short time before the commencement of this action, in which it is claimed that such representative stated that if the balance, then amounting to a considerable sum, of the initial license payment under the agreement with Schlifkin would be paid, the defendants would then own the machines. There is, however, no showing that such' representative had any authority to make such a representation or to vary the terms of either the lease which had been executed between plaintiff and Schlifkin and subsequently canceled, or the subsequent lease between plaintiff and the defendants, made prior to the execution sale. In any event the payment of such balance was not made and the entire conversation is therefore immaterial.

This view of the case makes it unnecessary to consider the other questions discussed on this appeal. It follows therefrom that under the testimony in this case the plaintiff was entitled to the possession of the personal property involved.

By the Court. — Judgment reversed, and action remanded with’ directions to enter judgment for the plaintiff.