115 Wis. 314 | Wis. | 1902
Before directing a verdict in favor of the defendants, the trial court inquired of the plaintiff’s attorney whether there was any testimony that the defendants ever had absolute possession of the property. The attorney then mentioned the letter of June 12, 1901. The court then asked whether the action was “for conversion, or Tor negligence in the discharge of duty,” and was told by both attorneys that it was an action for conversion. The plaintiff’s attorney frankly admitted that the only facts in the case to sustain the contention that the defendants ever had possession of the property so as to convert it was the letter, and that the tort had been waived. The trial judge then ruled that the letter must be read in the light of the defendant Mouai’s testimony, and stated:
“I must hold that, as a matter of fact, and as a matter of law, Mr. Mouat never had that property so absolutely in his control that he could have sold it if the plaintiff had telegraphed to him to do it, or that any communication with the plaintiff in this case would have helped the matter. No di*317 rections from Mm would liave changed it. I cannot see, in this case, that there is anything here for the jury, and it seems to me that it is my duty to direct a verdict in this case for the defendants, and 1 accordingly do so.”
We have no doubt about the correctness of such ruling. There is nothing in the letter to the contrary. It is therein expressly stated that when the defendants received the draft they “found that the eggs for which this draft was drawn in payment had already been delivered to the Eock Eiver Creamery Company, and had been re-shipped by them to Chicago.” It further stated the efforts they had made to collect the plaintiffs claim for the eggs. Manifestly, the defendants never had possession or control of the eggs shipped by the plaintiff; nor did they have possession of the other eggs which they tried to get in lieu of the plaintiffs eggs. There was certainly no conversion. There is no pretense of any neglect of duty on the part of the defendants, and, besides, the action is not based on that theory. The verdict was properly directed.
By the Court. — The judgment of the circuit court is affirmed.
