Becker v. Holm

• Decision Date: 11 December 1894
• Citation: 89 Wis. 86,61 N.W. 307
• Parties: BECKER v. HOLM ET AL.
• Court: Wisconsin Supreme Court

89 Wis. 86

61 N.W. 307

BECKER

v.HOLM ET AL.

Supreme Court of Wisconsin.

Dec. 11, 1894.

Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.

Action by John Becker, as assignee in insolvency of one Talbot, against Nils Holm, one Smith, and one Garrison, to recover the purchase price of a steamboat alleged to have been purchased from him by defendants. From a judgment of nonsuit, plaintiff appeals. Reversed.

This action was brought by the plaintiff, as assignee of one Talbot in a voluntary assignment for the benefit of his creditors, to recover $2,000, the purchase price of a steamboat alleged to have been sold and delivered by the plaintiff to the defendants, Holm, Smith, and Garrison, November 18, 1892. The answers of the several defendants were, in substance, a denial of the allegations of the complaint. Upon trial before a jury, at the close of the plaintiff's testimony, the court gave judgment of nonsuit against the plaintiff, from which he appealed. It appears that the alleged sale was made by Talbot as the agent of the plaintiff for that purpose, and the correctness of the ruling of the court depends upon his testimony, which tends to show that the defendant Garrison, claiming to act for himself and the other defendants, November 18, 1892, made a bargain with Talbot, the plaintiff's agent, to purchase the steamboat, then in the Fox river, below the bridge at Berlin, for $2,000, payable $1,000 in cash the following Tuesday or Monday, and the residue in “bank-accepted paper,” “bank acceptance,” or “bank-accepted note,”--all of these expressions having been used by the witness,--payable September 1, 1893, with 7 per cent. interest; that nothing was said as to what was meant by the expressions thus used, nor what banks should accept it, though the banks of Eau Claire were mentioned, but not any particular bank, and the note was to be delivered at Berlin; nor was anything stated as to how the bank should accept it, or that any bank was to sign or indorse it. Garrison represented that Smith did the managing for the defendants in the woods, and the defendant Holm was their man of means, and he (Garrison) was their woodsman, working on the streams and looking up timber, and that he had full authority to buy the boat. At this time he made arrangements with one Tiny Smith to take the boat up above the bridge and haul it out, preparatory to its shipment on the cars, for the sum of $80; and Talbot was to aid by giving directions, etc., but not to be to any expense. Tiny Smith procured help, hauled out the boat, and blocked it up on the bank, and prepared it for shipment, and Talbot had given him the key that was used on the lower part of the boat, and before the action was brought all the other keys, except one retained by Talbot. The defendants Garrison and Holm came to Berlin December 7th, and had an interview with Talbot, and both declared that they were satisfied with the condition of the boat, and the evidence tended to show that the parties waited there a considerable time for the plaintiff to come from Winneconne, to execute a bill of sale of the boat; and in the meantime some conversation was had in respect to making a sale of the boat for cash in hand, and Holm made an offer of $1,500, which was refused, and nothing further was said on the subject. At the time of the alleged agreement, Garrison stated the boat was to be used for towing logs on Lake Manitowish and on the waters of the Flambeau or Chippewa rivers, and it was to be transported on the cars. He desired time to submit the matter to the parties at Eau Claire, and it was agreed that he was to return and telegraph directions, and accordingly, on the 19th of the same month, he sent a telegram from Eau Claire to Talbot, saying, “Pull out the boat.” When Garrison and Holm were at Berlin, on the 7th of December, they took measurements of the boat, and discussed the question as to the convenience of loading it. At the request of Holm, Talbot repeated to him the statement of the bargain made with Garrison. The bill of sale was to be made to the defendant Smith. This was by request of Mr. Holm, and it was executed accordingly on the 8th of December, ready for delivery. The arrangements for the purchase of the boat were made by Garrison. Smith subsequently admitted that the agreement to buy the boat was made for him, and claimed that the bargain was for $1,000 cash and his note for $1,000, due the 1st of September, but that nothing was said about there being a bank acceptance, or any indorsement. The defendant Holm afterwards paid Tiny Smith the agreed price for taking the boat out of the river and blocking it up, and the latter claimed there was something due him for extra work, and up to and at the time of the trial he claimed to hold possession of the boat for the defendants and as security for his pay.Perry Niskern and L. A....