Abraham v. Karger

• Decision Date: 20 September 1898
• Citation: 100 Wis. 387,76 N.W. 330
• Parties: ABRAHAM v. KARGER.
• Court: Wisconsin Supreme Court

100 Wis. 387

76 N.W. 330

ABRAHAM

v.KARGER.

Supreme Court of Wisconsin.

Sept. 20, 1898.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Replevin by Clara Abraham against Isidor Karger. Judgment for plaintiff. Defendant appeals. Affirmed.Mock, Riley, Wittig & Schinz, for appellant.

Bloodgood, Kemper & Bloodgood, for respondent.

PER CURIAM.

This was an action for the recovery of a lot of merchandise stored by the defendant, Karger, at No. 559 East Water street, Milwaukee, and was in charge of one Bing, a relative of Karger, to sell for him on commission. The plaintiff, Clara Abraham, was at this time conducting a business under the name of the “Milwaukee Knitting Works.” This business was managed for her by her father, Louis Abraham, as her agent, who a few days prior to August 26, 1896, began negotiations with Bing for the purchase of the merchandise belonging to the defendant, Karger. These negotiations were in part conducted, according to the evidence of the plaintiff, Abraham, in the presence of, and with the sanction of, the defendant, Karger. There was a dispute between the witnesses for the plaintiff, on the one side, and the defendant and his witnesses, on the other, as to the terms of sale finally agreed on between the plaintiff and defendant. On the part of the plaintiff, Louis Abraham testified that the agreement as finally made was that the plaintiff was to pay the defendant, Karger, for this stock $2,000 in cash, and to deliver to him the note of one W. A. Meyer for $500; and this was corroborated by the evidence of James L. Gates, a witness on the part of the plaintiff, who testified that the defendant, Karger, stated to him that such was the case. The testimony of Karger and his witnesses was that the plaintiff was to pay to the defendant $2,500 in cash, and that Karger did not agree or consent in any way to accept the note of Meyer in payment of part of the consideration; and it appeared that this dispute as to the terms of the sale was the only matter upon which there was any conflict of testimony. On all other points the witnesses substantially agreed. At the time when the bargain was made, Louis Abraham paid Bing $25 to bind the bargain. The next day, the plaintiff, Abraham, paid to Bing $1,500, and at the time Bing gave to Abraham an invoice or statement, drawn up in Bing's handwriting, which recites the value of the merchandise at $4,100, the payment by cash and merchandise in exchange of $3,100; the balance of $1,000 to be paid, $500 in cash, and $500 in W. A. Meyer's note. Both Bing and Abraham admit that the purchase price was $2,500, and that no merchandise was given in exchange; that the bill or invoice was made out this way as a matter of convenience between the parties. And Bing further claims that the statement that the balance was to be $500 in cash and $500 in notes did not express the true understanding between them. August 24th, the plaintiff, through Louis Abraham, paid $500 more on the purchase; and, on the 26th of August, Louis Abraham tendered to the defendant, Karger, Meyer's note for $500, payable to the Milwaukee Knitting Works, and indorsed, “C. Abraham, Proprietor.” This tender was refused, and Karger said to Abraham, “If you don't have the money before noon, I am going to store the goods, and you will have to pay the costs;” whereupon the plaintiff, Clara Abraham, brought replevin, charging the unlawful and wrongful detention of the property. The court, in its charge to the jury, in effect told them that the question at issue was whether the sale was to be for cash and notes, as testified to by the plaintiff's witnesses, or for cash...