Bent v. Barnes

• Decision Date: 26 September 1895
• Citation: 90 Wis. 631,64 N.W. 428
• Parties: BENT v. BARNES.
• Court: Wisconsin Supreme Court

90 Wis. 631

64 N.W. 428

BENT

v.BARNES.

Supreme Court of Wisconsin.

Sept. 26, 1895.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by A. R. Bent against Lyman E. Barnes, as assignee of Hoxie & Mellor, a copartnership, to recover the balance due her on a logging contract after deducting the value of property recovered by her in replevin from defendant's assignors. From an order dismissing the complaint, plaintiff appeals. Reversed.

This is an action in equity, tried upon the same evidence as that submitted in the replevin action of Bent v. Hoxie (decided herewith) 64 N. W. 426, and involved the same logging contract. The action was brought to recover from the assignee the balance due on said logging contract, after deducting the value of the lumber replevied in the replevin action. That balance, on the 6th of September, 1890, was the difference between $10,336, the amount then due on the contract, and $9,336.85, the value of the lumber replevied, amounting to $999.15. The circuit judge found substantially the same facts as in the replevin action, and, in addition thereto, found, in effect, that the defendant, as assignee, received property of Hoxie & Mellor of the value of about $100,000, and that, among the property so received, was a quantity of lumber, of which 330,000 feet, of the value of $1,650, was made from plaintiff's logs, but it was so intermixed with the other lumber of the same quality and value that it could not be identified. It is expressly found that this amount of 330,000 feet remained in the hands of the assignee after deducting the amount seized in the replevin action. The circuit court dismissed the complaint, and the plaintiff appealed.F. W. Houghton and C. D. Cleveland, for appellant.

Charles W. Felker, Charles Barber, and A. E. Thompson, for respondent.

WINSLOW, J. (after stating the facts).

The character of the logging contract and its validity has been fully determined in the companion case of Bent v. Hoxie (determined herewith) 64 N. W. 426. The plaintiff retained title to the lumber manufactured from her logs until the contract price was paid. The facts are very simple. At the time of the assignment there was in the yard 330,000 feet of lumber, valued at $1,650, and the title to this lumber remained in the plaintiff until the balance due her on the contract, viz. $999.15, was paid. The assignee took this lumber and sold it. Upon well-established principles, the assignee must...