Unitype Co. v. Schwittay

168 Wis. 489 | Wis. | 1919

Eschweiler, J.

The situation here is controlled and in favor of plaintiff by the decision in Regina Co. v. Toynbee, 163 Wis. 551, 158 N. W. 313. In that case a foreign unlicensed corporation, under a conditional sale contract in substance like the one here, sold a piano to a resident of Wisconsin. He afterwards sold the piano to the defendant, who' removed it to another town in Wisconsin. The vendor subsequently took from this third person notes to the exact amount unpaid on the original contract with a new and similar conditional sale contract. There was no release of the original contract. This court held that the title to the instrument never passed to- any one in this state and that therefore the transactions there involved amounted to no more than the collection of the vendor’s claim upon its own property and that such piano still remained an article of interstate commerce.

In the case at bar the plaintiff, while still holding title under the original interstate transactions, took new security therefor from the widow of the original vendee. The widow continued the possession and use of the machine, necessarily only under and in recognition of the original transaction. By such possession and use she may well be considered as no stranger to the original transaction and as a substitute merely for the one who could no longer carry it out. Such a substitution of security as was here made is well within the ordinary incidents of commerce and does not destroy the interstate character of the original transaction. F. A. Patrick & Co. v. Deschamp, 145 Wis. 224, 228, 129 N. W. 1096.

The distinction is clear between this case and that of Sprout, Waldron & Co. v. Amery M. Co. 162 Wis. 279, 156 N. W. 158, relied upon by defendant. There an original interstate conditional sale of a flouring mill had been completely canceled by the giving of a new machine in place thereof. The first machine was set aside and its use discontinued by the vendees, and it remained in Wisconsin some months thereafter but no longe'r in any manner under the original contract. It was then sold to another resident of Wisconsin by the vendor, and this new and entirely independent sale was held to be within the ban of the statute' here involved.

That there was a reduction made from the balance due no more alters the real substance of this transaction than would a similar reduction, if made in the lifetime of A. E. Schwittay, have affected the rights of plaintiff under the original sale.

Neither did the placing of the new attachment upon this machine at the time defendant gave her notes change the nature of the transaction. Clearly such an attachment, although placed on the machine in this state, is incidental and plainly germane to the sale. York M. Co. v. Colley, 247 U. S. 21, 38 Sup. Ct. 430; S. F. Bowser & Co. v. Savidusky, 154 Wis. 76, 142 N. W. 182; Wolf Co. v. Kutch, 147 Wis. 209, 214, 132 N. W. 981.

Looking at the real substance of the transaction, it is evident that the parties here were in effect completing and carrying out the original interstate sale of this machine and that therefore it was a lawful transaction binding and en • forceable upon both patties.

By the Court. — Judgment reversed, and the cause remanded with directions to enter judgment in favor of the plaintiff according to the prayer of the complaint.

Siebecker, J., dissents.