Bent v. Hoxie

• Decision Date: 26 September 1895
• Citation: 90 Wis. 625,64 N.W. 426
• Parties: BENT v. HOXIE ET AL.
• Court: Wisconsin Supreme Court

90 Wis. 625

64 N.W. 426

BENT

v.HOXIE ET AL.

Supreme Court of Wisconsin.

Sept. 26, 1895.

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

Replevin by A. R. Bent against John C. Hoxie, E. N. Mellor, and Lyman E. Barnes, as assignee of the firm composed of his two codefendants, to recover pine lumber manufactured from standing timber sold defendants by plaintiff, but the title to which was retained by her until payment of the purchase price. There was judgment for plaintiff, from which defendants appeal. Affirmed.

This is an action of replevin to recover 1,500,000 feet of pine lumber which, at the time of the commencement of the action, to wit, September 6, 1890, was in the possession of Hoxie & Mellor. The sheriff seized, upon the writ, 1,263,236 feet of lumber, of the value of $9,336.85. On the same day that this action was commenced, but after the lumber had been seized upon the writ, Hoxie & Mellor made a voluntary assignment for the benefit of creditors to Charles V. Bardeen, who was made a party to the action, and upon whose resignation the defendant Barnes was appointed assignee, and substituted as a party to this action. The lumber replevied was, by stipulation, sold by the assignee, and the plaintiff obtained judgment against the assignee for the value thereof, as before stated. The action was tried by the court, trial by jury having been waived. The evidence showed that plaintiff, on the 27th of June, 1887, was the owner of a large tract of pine land, and that upon that day she entered into a contract in writing for the sale of all the pine timber upon said land to one J. H. Weed, the purchase price being $20,000. This contract provided that the “plaintiff has sold, and hereby does sell, assign, and transfer, and set over, unto the party of the second part, his executors, administrators, or assigns, all the pine timber standing, growing, or being upon said premises, or any part thereof,” with the right to enter on said premises for the purpose of removing said timber at any time within five years. The contract further provided “that the title to the logs and timber and lumber manufactured therefrom shall be and remain in the party of the first part [the plaintiff],” until the purchase price of $10 per thousand, amounting in all to $20,000, is fully paid. Other provisions of the contract required Allen to pay all the taxes levied upon the pine lands in question before the time the timber should be removed therefrom, and notice of such removal given to the plaintiff. In December, 1888, Weed sold and assigned to Hoxie & Mellor all his interest in said contract by written assignment, and they assumed to carry out the terms of the contract. Hoxie & Mellor had a large lumber business at Antigo, Wis., and in the state of Michigan. During the winters of 1889 and 1890 they cut from the lands of the plaintiff, under this contract, 2,600,000 feet of logs, which they mixed with 11,400,000 feet of other logs of about the same quality, cut from land owned by said Hoxie & Mellor, called the “Bryant Logs,” making a total of 14,000,000 feet of logs, which they cut and drew to Antigo, to the mill of J. H. Weed, where, during that winter and spring, they were all manufactured into lumber. Of this lumber so manufactured, 3,034,500 feet graded shop common and better, the balance being of inferior grades. All of the shop common and better had been sold by Hoxie & Mellor to the Antigo Lumber Company prior to September 6, 1890. On that date there was left in the possession of Hoxie & Mellor, in the yard at Antigo,...