Bruley v. Garvin

• Decision Date: 27 February 1900
• Citation: 105 Wis. 625,81 N.W. 1038
• Parties: BRULEY v. GARVIN.
• Court: Wisconsin Supreme Court

105 Wis. 625

81 N.W. 1038

BRULEY

v.GARVIN.

Supreme Court of Wisconsin.

Feb. 27, 1900.

Error to circuit court, Clark county; James O'Neill, Judge.

Action by Arthur Garvin against Emery Bruley. From a judgment for plaintiff, defendant brings error. Affirmed in part.

This is an action brought by Garvin against Bruley for the alleged conversion of a quantity of logs on or about the 15th day of January, 1897. The taking of the logs by Bruley was admitted, and the question at issue was simply as to the ownership of the logs. Garvin claimed title to the logs upon evidence tending to show the following facts: That in the year 1896, and prior thereto, Jesse Lowe and Thomas Lowe owned two 40's of land in Clark county, Wis., adjoining each other; that in the month of March, 1896, a road was laid out by the town authorities upon the line between said 40's, and that in June, 1896, Garvin made a verbal contract with the two to cut down the timber in said highway and clear the same; that after making said contract he made a verbal contract with the two Lowes to purchase the timber then standing in said new highway, and paid a part of the purchase price thereof; that, at the time said last-named contract was made, he had entered upon said highway, and had underbrushed a part of it; that he continued to work thereon clearing said highway, and cut down the trees from which the timber in dispute here resulted on the 28th day of December, 1896; that he had no notice that Bruley claimed any right in said timber until after the same had been converted into logs; and that Bruley took possession of the logs and converted them in June, 1897. The evidence on the part of Bruley tended to show that he made a written contract with Jesse Lowe for the purchase of an undivided half of both 40's December 8, 1896, and about the same time made a verbal contract with Thomas Lowe for the purchase of the other undivided half of said land, and paid the sum of $400 of the purchase money, and was given possession of the land; that the written contract provided for the payment of the balance of the purchase money within six months from December 8, 1896, and the delivery of the deed upon such payment, and, further, that the title of the timber on said lands should remain in Lowe until the purchase money was fully paid; that, in pursuance of said written and oral contracts, Bruley took possession of the land, and commenced logging the timber thereon, as early as the 15th day of December, 1896; that on the 29th of December, 1896, the two Lowes executed warranty deeds of the said lands to Bruley; and that he (Bruley) had no information of the laying out of said highway, or that Garvin claimed any interest in the timber thereon, at the time he contracted for said lands, nor at the time when he went into possession thereof and began logging the same. There was a special verdict found by the jury as follows: “(1) Were Thomas and Jesse Lowe in the year 1896, and prior to the time when they made the bargain and sale thereof, the owners of the southwest quarter of the southwest quarter of section 17, and the norhtwest quarter of the northwest quarter of section 20, in township No. 25 north, of range No. 1 east, in Clark county, Wisconsin? Answered by the court upon the undisputed evidence: Yes. (2) Did the plaintiff in the summer of 1896 make a parol contract with Thomas Lowe and Jesse Lowe to sell to the plaintiff the timber on the right of way or highway on the lands described in the answer? Ans. Yes. (3) Did the plaintiff, pursuant to said parol contract, thereafter cut the timber for which this action is brought? Ans. Yes. (4) Did the plaintiff have notice that the land upon which said timber was cut, or the timber thereon, had been sold, or contracted to be sold, to the defendant, Bruley, prior to cutting the same? Ans. No. (5) Was the plaintiff notified by either Thomas Lowe or Jesse Lowe not to cut said timber prior to cutting the same? Ans. No. (6) Was the plaintiff notified by the defendant, Bruley, after he had made a contract for the purchase of said land or timber, not to cut said timber, prior to cutting the same? Ans. No. (7) What was the value of such of the timber cut by the plaintiff as was taken by the defendant, at the time and place when it was taken? Ans. $80.93 1/2. (8) How much is the interest, at six per cent., on the sum so found to be the value of said timber, from the date when taken to the time of this verdict? Ans. $7.20.” Upon this verdict judgment was rendered in favor of Garvin for $88.13 damages and $124.77 costs, and Bruley sued out a writ of error.

Chas. F. Grow and J. R. Sturdevant & Son, for plaintiff in error.

L. M. Sturdevant and R. F. Kountz, for defendant in error.

WINSLOW, J. (after stating the facts).

Examination of the evidence convinces us that the findings of the jury are sufficiently supported by the evidence, and the main question to be decided is whether these findings, in connection with the undisputed facts, justify the judgment rendered. Garvin attempted to purchase the timber by parol, and paid part of the...